Abstract Principle v. Contextual Conceptions of Harm:
A Comment on R. v. Butler
Jamie Cameron*
This Comment provides a critique of the
Supreme Court of Canada’s decision in R. v.
Butler, which held that section 163(8) of the
Criminal Code, defining obscenity, is a rea-
sonable limit on freedom of expression under
section 1 of the Canadian Charter of Rights
and Freedoms. Before discussing the Charter,
the Court expanded the scope of section
163(8) to include a prohibition against sexu-
ally explicit material that is degrading or dehu-
manizing. Initially, the author is critical of the
Court’s methodology, which enlarged section
163(8) at the expense of expressive freedom,
without even mentioning the Charter.
Once the Court had interpreted the statute
expansively, its Charter analysis became little
more than an afterthought. By articulating the
government’s objective in broad, generalized
terms and then applying a diluted proportion-
ality test, the Court had little difficulty justify-
ing the infringement on expressive freedom
under section 1. The author takes issue with
Butler’s constitutional analysis before com-
menting more generally on the Court’s failure
to acknowledge the censorial implications of
this decision.
Ce commentaire traite de l’arrdt R. c. Butler
de la Cour supreme du Canada, qui a drclar6
que l’article 163(8) du Code criminel d6finis-
la
sant l’obscrnit6, est une limite raisonnable
libert6 d’expression selon la Charte cana-
dienne des droits et libertis. Avant m~me
d’aborder Ia Charte, la Cour 61argit la portre
de l’article 163(8) pour le rendre applicable A
Ia prohibition de produits sexuellement expli-
cites qui sont drgradants ou drshumanisants.
L’auteure trouve mal avisde cette mrthodolo-
gie de la Cour supreme, qui consiste h 6tendre
la portre de l’article 163(8) au detriment de la.
libert6 d’expression, et ce sans avoir m~me fait
mention de Ia Charte.
Suite a son interpretation large de Ia dispo-
sition l6gislative, l’analyse que fait la Cour en
vertu de la Charte se prrsente presque comme
une arri~re-pens~e. Articulant la finalit6 16gis-
lative de cette disposition en termes g6nrraux,
puis diluant le test de proportionnalit6, la Cour
6prouve peu de difficultrs A trouver justifire
qu’elle porte selon les param~tres de l’article
premier l’atteinte a la libert6 d’expression.
L’auteure critique l’analyse constitutionnelle
contenue dans l’arrt Butler pour enfin nous
livrer ses commentaires plus grnraux sur le
d6faut de la Cour suprame de reconnaitre les
implications censoriales de sa decision.
. Associate Professor, Osgoode Hall Law School.
McGill Law Journal 1992
Revue de droit de McGill
To be cited as: (1992) 37 McGill L.J. 1135
Mode de citation: (1992) 37 R.D. McGill 1135
1136
Introduction
McGILL LAW JOURNAL
[Vol. 37
Without a murmur of dissent, the Supreme Court of Canada recently
upheld Criminal Code1 restrictions on obscenity in R. v. Butler? And, with little
more than a murmur of dissent,3 its decision was greeted with praise. While
opponents of pornography claimed a legal victory for women “of world historic
importance,”4 the Globe and Mail placed the Supreme Court of Canada in “the
vanguard of legal thinking” for not permitting the right of freedom of expression
to be used as an “excuse” for the circulation of debasing sexual materials.’
Ten years after the Charter’s6 enactment, it is doubtful that section 2(b)7
has enhanced the status of expressive freedom in Canada. Although resistance
to the guarantee can be found in the lower court jurisprudence, it is the Supreme
Court of Canada’s interpretation of section 2(b) that is most troubling. In more
than fifteen decisions to date, the claim has succeeded no more than five times.
1R.S.C. 1985, c. C-46.
2R. v. Butler, [1992] 1 S.C.R. 452, 70 C.C.C. (3d) 129 [hereinafter Butler cited to S.C.R.]. Com-
pare R. v. Keegstra, [1990] 3 S.C.R. 697, 61 C.C.C. (3d) 1 [hereinafter Keegstra cited to S.C.R.]
(upholding a ban on hate expression, by a four to three margin) and R. v. Seaboyer, [1991], 2 S.C.R.
577, 83 D.L.R. (4th) 193 [hereinafter Seaboyer cited to S.C.R.] (invalidating a ban on examination
of past sexual experience in sexual assault cases, by a seven to two margin).
3For less receptive views, see A. Borovoy, “Beware the Bible, or the 11 O’clock News” Globe
and Mail (10 March 1992) A19; P. Bryden, “The Queen v. Butler: The Triumph of Pragmatism in
Free Speech Adjudication” (1992) 3 Med. & Comm. L. Rev. [forthcoming].
Catharine MacKinnon).
4Jeff Sallot, “Legal Victory Bittersweet” The Globe and Mail (29 February 1992) A6 (quoting
5″Pornography and Violence” The Globe and Mail (29 February 1992) D6 (editorial).
6Canadian Charter ofRights and Freedoms, Part I of the Constitution Act, 1982, being Schedule
B of the Canada Act 1982 (U.K.), 1982, c. 11.
7Section 2(b) of the Charter reads as follows:
2. Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the
press and other media of communication.
8The claim also failed in the following cases: R.W.D.S.U. v. Dolphin Delivery Ltd, [1986] 2
S.C.R. 573, 33 D.L.R. (4th) 174 (upholding limitations on secondary picketing); Canadian News-
papers Co. v.A.G. Canada, [1988] 2 S.C.R. 122,52 D.L.R. (4th) 690 (upholding a mandatory pub-
lication ban of complainant’s identity in sexual offence cases); B.C.G.E.U. v. A.G. British Colum-
bia, [1988] 2 S.C.R. 214, 53 D.L.R. (4th) 1 (upholding an injunction restraining courthouse
picketing); Irwin Toy Ltd v. A.G. Quebec, [1989] 1 S.C.R. 927, 58 D.L.R. (4th) 577 [hereinafter
Irwin Toy cited to S.C.R.] (upholding a prohibition on advertising directed at children under age
13); Slaight Communications v. Davidson, [1989] 1 S.C.R. 1038, 59 D.L.R. (4th) 416 (upholding
an order for compelled expression); R. v. Stagnitta, [1990] 1 S.C.R. 1226, 56 C.C.C. (3d) 17; R.
v. Skinner, [1990] 1 S.C.R. 1235, 56 C.C.C. (3d) 1; Reference Re ss. 193 and 195.1(1)(c) of the
Criminal Code, [1990] 1 S.C.R. 1226, 4 W.W.R. 481 [hereinafter The Prostitution Reference cited
to S.C.R.] (upholding the Criminal Code’s prohibition on the public solicitation of sexual services);
Keegstra, supra, note 2; R. v. Andrews and Smith, [1990] 3 S.C.R. 870, 61 C.C.C. (3d) 490
(upholding a Criminal Code provision prohibiting hate propaganda); Canada Human Rights Com-
mission v. Taylor, [1990] 3 S.C.R. 892, 75 D.L.R. (4th) 577 (upholding a prohibition against racist
telephone messages); Lavigne v. O.PS.E.U., [1991] 2 S.C.R. 211, 81 D.L.R. (4th) 545 (upholding
compelled financial support of political and ideological messages); C.B.C. v. Lessard, [1991] 3
S.C.R. 421, 67 C.C.C. (3d) 517; C.B.C. v. A.G. New Brunswick, [1991] 3 S.C.R. 459, 85 D.L.R.
(4th) 57 (upholding the search and seizure of press news videotapes).
1992]
CASE COMMENTS
1137
Concerns about the implications of that record can only deepen following the
Court’s unanimous decision in Butler.
Ultimately, the Court held that section 163(8) of the Criminal Code, which
defines obscenity, is a justifiable limitation on freedom of expression. The
analytical approach Sopinka J. adopted in arriving at that conclusion was some-
what unusual.9 Initially, and without reference to the Charter, he read section
163(8) “up” to enhance the scope of the prohibition. Through a doctrinal inter-
pretation that purported to fill “lacunae” in the legislation, the definition of
obscenity expanded to include sexually explicit material that is degrading or
dehumanizing.”0 Under that standard, material which might create a pre-
disposition to behave in an anti-social manner can be prohibited; anti-social
behaviour is in turn defined as any conduct that “society formally recognizes as
incompatible with its proper functioning.”‘” Even before the Charter was con-
sidered, a new category of prohibited expression had been added to section
163(8).
At that point it was inconceivable that the Court would then invalidate sec-
tion 163(8) under the Charter. In such circumstances, Mr. Justice Sopinka’s
constitutional analysis was little more than an afterthought. With one exception,
every issue was resolved against the interest in protecting expressive freedom.
Precedent dictated a generous and egalitarian interpretation of section 2(b), and
a prima facie finding of breach was accordingly unavoidable. Once the analysis
shifted to section 1, the egalitarianism of section 2(b) was quickly displaced;
there, the analysis was driven by an assumption that, as low value expression,
obscenity should effectively receive no protection under the Charter.
See also Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, 23 D.L.R. (4th)
122 (upholding limits prior to the Charter on the expressive freedom of public service employees);
Moysa v. Alberta Labour Relations Board, [1989] 1 S.C.R. 1572, 60 D.L.R. (4th) 1 (declining to
consider whether s. 2(b) protects the confidentiality of a journalist’s source of information);
MacKay v. Manitoba, [1989] 2 S.C.R. 357, 61 D.L.R. (4th) 385 (dismissing a challenge to provi-
sions of Manitoba’s Elections Finances Act); Vickery v. Nova Scotia Supreme Court (Prothono-
tary), [1991] 1 S.C.R. 671, 64 C.C.C. (3d) 65 (dismissing an application by the press for access
to a video tape court exhibit).
The claim succeeded in the following cases: Ford v. A.G. Quebec, [1988] 2 S.C.R. 712, 54
D.L.R. (4th) 577; Devine v. A.G. Quebec, [1988] 2 S.C.R. 790, 55 D.L.R. (4th) 641 (invalidating
Quebec’s unilingual sign language law); Edmonton Journal v. A.G. Alberta, [1989] 2 S.C.R. 1326,
64 D.L.R. (4th) 577 [hereinafter Edmonton Journal cited to S.C.R.] (invalidating a publication ban
on the disclosure of certain judicial proceedings); Rocket v. Royal College of Dental Surgeons of
Ontario, [1990] 2 S.C.R. 232,71 D.L.R. (4th) 68 (invalidating regulations prohibiting professional
advertising); Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, 77
D.L.R. (4th) 485 (upholding access to public airports for expressive purposes); Osborne v. Canada
(Treasury Board), [1991] 2 S.C.R. 69, 82 D.L.R. (4th) 321 [hereinafter Osborne] (invalidating
legislative provisions prohibiting public servants from engaging in partisan political activi-
ties).
9Though the decision was unanimous, Gonthier J. wrote concurring reasons, in which L’Heu-
reux-Dub6 J. joined. Due to space limitations this Comment focuses its attention on Sopinka J.’s
majority reasons, which were supported by seven members of the Court.
1Butler, supra, note 2 at 483. S. 163(8) of the Criminal Code defines obscenity as “any pub-
lication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one
or more of crime, horror, cruelty and violence.”
“Ibid. at 484.
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[Vol. 37
In discussing the permissibility of the government’s objective, Sopinka J.
claimed that the purpose of section 163(8) is to avoid harm, and not to enforce
morals. 2 In his view, sexually explicit material undercuts equality values, rein-
forces women’s negative self-perception and may retard the achievement of
gender equality.13 By placing the emphasis on gender, Mr. Justice Sopinka
attempted to distinguish the prevention of harm from the enforcement of mor-
als. 4 Ultimately, however, what Butler punishes is gender inequality, and an
unacceptable portrayal of female sexuality. The result is that, although the Char-
ter prohibits the institutionalization of a particular conception of sexuality that
is based on “morality,” it permits the imposition of an alternative conception
based on “equality.”
Thereafter, the Court applied a diluted standard of proportionality that was
essentially meaningless. The first element of that test requires the government
to establish that the prohibition is rationally connected to the achievement of its
objective. 5 There, because it was reasonable for Parliament to prohibit any
materials which might contribute to a “desensitization of individuals,” the ratio-
nal connection requirement was satisfied. 6 The purpose of the second element,
the minimal impairment test, is to ensure that the government does not over-
reach, either by prohibiting activity that is constitutionally protected, or by
employing means which unduly impair the right. 7 According to Sopinka J., that
requirement was satisfied as well, because less intrusive means would not pre-
vent women from feeling victimized by sexually explicit materials.'” However,
reversing a perception of victimization is incompatible with a concept of min-
imal impairment: such a perception could only be negated by maximum impair-
ment. In light of those findings, discussion of the third element of the test, which
reflects a final time on the proportionality of the infringement, was perfunctory.
Whatever its consequences for the status of sexually explicit materials,
Butler is troubling from a broader perspective. The Court’s treatment of expres-
sive freedom was both careless and peremptory. In methodological terms, the
Charter’s separation of the right and its permissible limitations has enabled the
Court to marginalize section 2(b)’s guarantee in the following way. After invok-
ing the rhetoric of expressive freeedom to support a definition of the right which
conceptualizes all expression as equal, the Court employs contextualism under
section 1 to rationalize limitations on expression that offends fundamental val-
ues. Because it is disguised by the Charter’s bifurcation of breach and justifi-
cation, the contradiction between the prima facie egalitarianism of section 2(b)
and the nullification of that principle under section 1 is implemented without
explanation.
121bid. at 493.
131bid. at 497, 504.
141bid. at 479, 484.
5R. v. Oakes, [1986] 1 S.C.R. 103 at 139, 26 D.L.R. (4th) 200 [hereinafter Oakes cited to
‘
S.C.R.].
16Ibid. at 164.
7Ibid.
1
18Supra, note 2 at 507.
1992]
CHRONIQUES DE JURISPRUDENCE
1139
Jurisprudentially, Butler confirms that, rhetoric aside, the Supreme Court
of Canada lacks any vision of expressive freedom. Conceptually, the difficulty
can be traced to Edmonton Journal, and Madame Justice Wilson’s juxtaposition
of “abstract” principle with “contextual” reality.19 As this Comment suggests, in
the absence of a commitment to principle, it is questionable whether freedom
of expression can be protected. The decisions in Keegstra and Butler demon-
strate that context can otherwise become synonymous with the suppression of
unpopular expression. Historical experience proves that censorship has been as
much a part of democratic reality as social inequality.
In examining these themes, this Comment begins by explaining how
Butler’s decision to read section 163(8) up effectively constitutionalized a defi-
nition of obscenity without subjecting it to constitutional scrutiny. Following
discussion of the Court’s Charter analysis, a third and final section reflects on
Butler’s implications for expressive freedom more generally.
I. Reading Section 163(8) “Up”
A.
Introduction
Before addressing the Charter, Sopinka J. decided to elaborate on and clar-
ify obscenity doctrine. Through doctrinal interpretation, he incorporated a pro-
hibition against degrading or dehumanizing sexual material into section
163(8)’s definition of obscenity. In doing so, he chose to ignore precedent which
explicitly considered the principle of tolerance in balancing freedom against
community standards. Moreover, by expanding that definition without a single
reference to the Charter, the Court’s preliminary discussion in effect resolved
the constitutional issue.
B. Obscenity Doctrine and the Charter
Section 163(8) of the Criminal Code defines obscenity as “any publication
a dominant characteristic of which is the undue exploitation of sex, or of sex and
any one or more of … crime, horror, cruelty and violence.” Prior to the Charter,
conviction did not require proof of any of its aggravating elements; materials
which offended “community standards” constituted an undue exploitation of sex
under the Criminal Code.2′ The subjectivity of that standard, together with its
undeniable roots in conventions of moral propriety, provoked concerns about its
implications for expressive freedom. To reduce the scope of moral censorship,
the courts began to qualify the concept of community standards by reference to
the principle of tolerance.21
19Supra, note 8 at 1355-56 (concurring opinion).
2See Brodie v. R., [1962] S.C.R. 681, 32 D.L.R. (2d) 507 (introducing the community standards
test).
21 It is neither helpful nor accurate to say that the standard of tolerance is synonymous
with the moral standards of the community … . The question … is not whether the con-
tent of the publication … is right, but rather whether it goes beyond what the contem-
porary Canadian community is prepared to tolerate (R. v. Penthouse International Ltd
1140
McGILL LAW JOURNAL
[Vol. 37
Enactment of the Charter posed new dilemmas about the status of obscen-
ity. Though the constitutionality of suppressing explicit sex on purely moral
grounds appeared dubious, instinct rejected the suggestion that “low value”
expression could be protected by the Charter. In such circumstances, sustaining
the Criminal Code’s prohibition against obscenity would require an alternative
explanation. An added complication was that, in structural terms, it was unclear
how pre-existing doctrine could be adapted to the Charter’s framework of
breach and justification.’ Doctrinal standards which evolved prior to the Char-
ter were designed to facilitate enforcement of the Criminal Code, not test its
constitutionality.’
To sever the connection between pre-existing doctrine and conventions of
morality, the lower courts began to shift the analysis. Sexually explicit materials
could be prohibited in the era of the Charter, not simply because they were mor-
ally wrong, but because they were “degrading” or “dehumanizing.” That shift
had its genesis in R. v. Doug Rankine Co.’s conclusion that the Criminal Code
prohibits “the performance of indignities” which degrade and dehumanize its
participants.24 Although the Charter was not in issue, Borins Co. Ct J. stated that
the community standard of tolerance must be informed by “heightened respect
for freedom of expression.”‘ Despite that qualification, the definition of
obscenity expanded by judicial interpretation. At the same time, section 163(8)
was saved under the Charter because it was valid on its face.26
Although the prohibition against degrading or dehumanizing treatment did
not displace moral criteria, it found additional support in a new-found reliance
on equality values. Thus in Wagner the Court drew a distinction between “sex-
ually explicit erotica [which] portrays positive and affectionate human sexual
(1979), 46 C.C.C. (2d) 111 at 114-15, 96 D.L.R. (3d) 735 (Ont. C.A.), leave to appeal
refused, [1979] 1 S.C.R. xi).
See also Dominion News and Gifts (1962) Ltd v. R., [1964] S.C.R. 251, 3 C.C.C. 1 [hereinafter
Dominion News cited to C.C.C.] affirming (1963), 2 C.C.C. 103, 40 C.R. 109 (Man. C.A.); R. v.
Odeon Morton Theatres Ltd (1974), 16 C.C.C. (2d) 185, 45 D.L.R. (3d) 244 (Man. C.A.); R. v.
Prairie Schooner News Ltd et at. (1970), 1 C.C.C. (2d) 251, 75 W.W.R 585 (Man. C.A.); Towne
Cinema Theatres Ltd v. R., [1985] 1 S.C.R. 494, 18 D.L.R. (4th) 1 [hereinafter Towne Cinema cited
to S.C.R.].
22Some s. 2(b) activities raised issues of first impression; for example, does legislation which
limits commercial expression violate the Charter? Obscenity, by contrast, raised questions about
the constitutional status of a ready-made doctrinal framework that predated the Charter.
23Thus it was awkward to define the s. 2(b) right by reference to concepts such as the “undue
exploitation of sex” and community standards test, which are aimed at limiting expressive freedom.
Nor was it self-evident that the pre-existing doctrine would fit into the s. 1 analysis. Prior to Oakes
that doctrinal framework might have been regarded as an issue-specific proxy for “reasonable lim-
its.” Once Oakes was decided the difficulty was that obscenity doctrine lacked analogues in a
standard that was designed to test the constitutionality of legislation.
24(1983), 9 C.C.C. (3d) 53 at 70, 36 C.R. (3d) 154 (Ont. Co. Ct) [hereinafter cited to C.C.C.).
25Ibid. at 65.
26See, for example, R. v. Red Hot Video (1985), 45 C.R. (3d) 36, 18 C.C.C. (3d) 1 (B.C.C.A.),
leave to appeal to S.C.C. refused (1985), 46 C.R. (3d) xxvn [hereinafter Red Hot Video cited to
C.R.]; R. v. Wagner (1985), 43 C.R. (3d) 318, 36 Alta. L.R. (2d) 301 (Q.B.) [hereinafter Wagner
cited to C.R.], aff’d 50 C.R. (3d) 175, 43 Alta. L.R. (2d) 204 (C.A.), leave to appeal to S.C.C. ref-
used (1986), 50 C.R. (3d) 175n, 26 C.C.C. (3d) 242n; R. v. Ramsingh (1984), 14 C.C.C. (3d) 230,
29 Man. R. (2d) 110 (Q.B.) [hereinafter Ramsingh cited to C.C.C.].
1992]
CASE COMMENTS
1141
interaction, between consenting individuals participating on a basis of equality,”
and pornography that is “degrading or dehumanizing.”27 In rejecting a challenge
under section 2(b) of the Charter, Ramsingh confirmed that community stand-
ards are exceeded “where there are people, particularly women, who are sub-
jected to anything which degrades or dehumanizes them.”‘ The B.C. Court of
Appeal provided the most explicit endorsement of the new-found rationale in
Red Hot Video; there Anderson J.A. declared that exposure to violent and
degrading material constitutes a “threat to equality” which tends to make men
more tolerant of violence to women and creates a “social climate encouraging
men to act in a callous and discriminatory way towards women.”’29
In the years prior to Butler the definition of obscenity expanded at the
expense of expressive freedom. Not only did gender equality suggest a rationale
that was distinct from traditional moral grounds, it could also claim the textual
sanction of the Charter.?’ Morever, though the Criminal Code neither mentions
nor prohibits sexual materials that are degrading or dehumanizing, the courts
failed to consider the possibility that section 163(8) could be given an uncon-
stitutional interpretation. It appeared that, as long as the statutory provision was
valid on its face, the definition of obscenity could expand with impunity. The
decision in Butler both legitimized and extended a trend that began with Doug
Rankine Co.
C. Butler’s Definition of Obscenity
In R. v. Butler, Sopinka J. filled “lacunae” in the legislation by proposing
a definition which divides “pornography” into three categories: explicit sex with
violence; explicit sex without violence which is degrading or dehumanizing;
and explicit sex without violence that is neither degrading nor dehumanizing.31
Butler’s scheme would include all explicit sex with violence in the scope of the
prohibition, and exclude all explicit sex that lacks elements of violence, degra-
dation or dehumanization, except where children are involved.32 Butler would
also prohibit explicit sex that is degrading or dehumanizing, if it presents a sub-
stantial risk of harm.
Unlike sex with violence, sex that is degrading or dehumanizing is not
explicitly prohibited by section 163(8). Although Sopinka J.’s definition
would include sex in combination with crime, horror or cruelty, his conception
of what is degrading or dehumanizing was not limited to the criteria specifically
identified by section 163(8). He extended the prohibition, additionally, to mate-
rial which “predisposes persons to act in an anti-social manner., 34 Such a pre-
27Ibid. at 331.
2Supra, note 26 at 240.
29Supra, note 26 at 59 (concurring opinion).
30Ss 15 and 28 (guaranteeing, respectively, equality and gender equality).
31Supra, note 2 at 484. Note that although much of the literature draws a distinction between
obscenity and pornography, Sopinka J. used the terms interchangeably.
321bid. at 485.
33Such materials would fall within the prohibition, through judicial interpretation, as an “undue
exploitation of sex.”
34Ibid. at 485.
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[Vol. 37
disposition can be manifested in the form of “physical or mental mistreatment
of women by men;”’35 more generally, it encompasses any conduct which “soci-
ety formally recognizes as incompatible with its proper functioning.”36 An infer-
ence that materials create a risk of promoting a predisposition to behave in an
anti-social manner can be drawn from the material itself.
Butler’s indeterminate and open-ended definition of obscenity unarguably
undercut expressive freedom. However, for reasons that are not explained,
Sopinka J. assumed that his doctrinal interpretation of section 163(8) was
immune from Charter review. Thus he initially stated that it would be helpful
to review obscenity doctrine “[blefore proceeding to consider the constitutional
issues,” [emphasis added] 37 and later reiterated that it was necessary to fill lacu-
nae in the legislation “before subjecting [it] to Charter scrutiny.” [emphasis
added]38 By enhancing the statutory definition through judicial interpretation,
Sopinka J. finessed the central question: does the Charter permit sexually expli-
cit materials to be suppressed because they are considered degrading or dehu-
manizing?
Quite apart from the Charter, Mr. Justice Sopinka’s discussion of obscenity
doctrine reveals a startling disregard for precedent and more specifically, for the
principle of tolerance. As early as 1964, Freedman J.A. stated that “in cases
close to the border line, tolerance is to be preferred to proscription,” because
otherwise, “suppression may tend to inhibit those creative impulses and endeav-
ours which ought to be encouraged in a free society.”39 That principle was con-
sistently confirmed in the jurisprudence leading up to the Supreme Court of
Canada’s decision in Towne Cinema Theatres.”
Although Towne Cinema included degrading and dehumanizing treatment
in its definition of obscenity, the charges in that case predated the Charter and
accordingly were not challenged on constitutional grounds. Moreover, whereas
Butler defined degradation and dehumanization in abstract, speculative terms,
Towne Cinema linked those concepts more closely to the text of section 163(8),
and to the aggravating elements, such as violence and cruelty, which it specifi-
cally prohibits.41 Finally, while accepting that the community might tolerate
harmful behaviour, former Chief Justice Dickson confirmed that obscenity doc-
trine is based on a principle of tolerance.4″
35″Or, what is perhaps debatable, the reverse” [emphasis added] (ibid.).
361bid.
371bidL at 471.
3sIbid. at 483.
39Dominion News, supra, note 21 at 117.
40Towne Cinema, supra, note 21.
41Although he did not preclude other forms of dehumanizing or degrading treatment, Dickson
C.J. (as he then was) clearly associated those concepts with violence and cruelty. He stated that
“publications which portray persons in a degrading manner as objects of violence, cruelty or other
forms of dehumanizing treatment, may be ‘undue,”‘ and that “[n]o one should be subject to the
degradation and humiliation which link sex with violence, cruelty and other forms of dehumani-
zing treatment” (ibid at 505). On this point, compare Wilson J. who linked degradation, in more
abstract terms, to a “process of moral desensitization” (ibid. at 524).
Thus he acknowledged that “the community may tolerate publications that cause harm to
members of society” and that a legal definition of ‘undue’ must also encompass publications harm-
4 2
1992]
CHRONIQUES DE JURISPRUDENCE
1143
In doctrinal terms alone, Butler represents a departure from precedent.
Prior to the Charter, tolerance and respect for expressive freedom formed part
of the analysis in obscenity cases. With one exception, references to those prin-
ciples were selectively excluded from Sopinka J.’s discussion of the jurispru-
dence.43
Furthermore, by purporting merely to fill lacunae in the legislation,
Sopinka J. considered himself free to enhance section 163(8) without regard to
the Charter. In reading section 163(8) expansively, he invented a new doctrinal
technique: reading up.
Under the Charter, legislation must not only be valid on its face but must
also be interpreted in a manner that is consistent with its guarantees. As a matter
of general principle, statutory provisions found inconsistent with one of the
Charter’s guarantees are invalid.’ In the absence of legislation the courts will
occasionally articulate judge-made rules or guidelines to ensure that doctrine
complies with the Charter.!’ In other cases, where a statutory provision can be
read narrowly, it may be unnecessary to invalidate the legislation. “Reading
down” is a doctrinal technique that enables the courts to save legislation by ren-
dering an interpretation that is consistent with the Charter 6
Whereas reading down narrows the scope of a statutory provision to make
it consistent with the Charter, Butler’s technique of reading the definition
of obscenity up yielded an interpretaiion that was more intrusive of expres-
sive freedom than that necessitated by the statute. On this point, a comparison
with Keegstra ” is telling. Before upholding section 319(2)’s prohibition of hate
propaganda, former Chief Justice Dickson applied a full-scale justificatory ana-
lysis. He specifically considered whether it was permissible under the Charter
to suppress “hate,” and read the statutory prohibition narrowly, to limit the inter-
ference with expressive freedom.”‘
In principle, it should not matter that section 319(2) explicitly prohibits
hate, and that section 163(8), by contrast, does not mention degrading or dehu-
manizing treatment. Once Butler incorporated those criteria into section 163(8),
ful to … society as a whole” (ibid. at 505). Subsequently, however, he reiterated that, as a matter
of general principle, “it is a standard of tolerance, not taste, that is relevant,” and that “[w]hat mat-
ters is what Canadians will not abide other Canadians seeing because it would be beyond the con-
temporary Canadian standard of tolerance to allow them to see it” (ibid. at 508).
43Supra, note 2 at 477, citing Towne Cinema, ibid.
44See R. v. Big MDrug Mart, [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321 (holding that legislative
provisions which violate the Charter are per se invalid).
45Seaboyer, supra, note 2 at 598 (defining a “middle way” at common law, following the inval-
idation of legislation, that offers complainants in sexual offence trials maximum protection, “com-
patible with the maintenance of the accused’s fundamental right to a fair trial”).
46See, generally, C. Rogerson, “The Judicial Search for Appropriate Remedies Under the Char-
ter: The Examples of Overbreadth and Vagueness” in R. Sharpe, ed., Constitutional Litigation
(Toronto: Carswell, 1985) 233.
47Supra, note 2.
48rhus he carefully defined hate as “expression intended or likely to create or circulate extreme
feelings of opprobrium and enmity” (ibid. at 722), confirmed the requirement of mens rea, and
emphasized the scope and availability of defences to a charge.
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discussion of their constitutionality became imperative. A constitutional issue
that arose in both cases was addressed in Keegstra, but not in Butler.
D. Conclusion
Butler’s interpretation of section 163(8) maximized the interference with
section 2(b) of the Charter. In addition, the separation of “doctrine” and consti-
tutional analysis enabled Sopinka J. to marginalize the values of tolerance and
expressive freedom. Because section 2(b) would eventually be discussed, the
principle of tolerance could be discounted in the discussion of doctrine. At the
same time, the Court’s preliminary discussion of doctrine eclipsed its subse-
quent consideration of expressive freedom. Once the statutory definition was
read up, it was inevitable that the Charter’s requirements would be read down.
H. Reading the Charter “Down”
A.
Introduction
Neither in its discussion of doctrine nor in its Charter analysis did Butler
directly address the constitutionality of suppressing expressive activity that is
degrading or dehumanizing. Moreover, free expression values were as periph-
eral under the Charter as they had been in the Court’s discussion of doctrine.
With one exception, which was dictated by precedent, every issue was resolved
against the interest in protecting expressive freedom.
B. The Charter’s Constitutional Equation
The Charter’s separation of breach and justification recognizes that, in any
contest between individual liberty and democratic values, the two sides of the
“constitutional equation” must be balanced. Though formally separated by the
text, breach and justification cannot be treated as discrete, analytical concepts.
Limits on the guarantees can only be defined by justificatory criteria and, by the
same token, the reasonableness of limitations under section 1 cannot be deter-
mined exclusively by reference to democratic values. There, the countervailing
interests in protecting the Charter’s rights and freedoms must also be taken into
account.
Under section 2(b), the Supreme Court of Canada chose not to restrict the
scope of the guarantee. In Irwin Toy it held instead that all activity that attempts
to convey meaning is prima facie protected by section 2(b).49 That rule of inter-
pretation was reinforced in subsequent decisions which refused to exclude
offensive expressive activity from the scope of section 2(b).”0
Irwin Toy’s definition of freedom of expression is based on a conception
of expressive freedom which -is fundamentally egalitarian. Rather than distin-
guish between valuable and valueless expression, the Court held in Irwin Toy
49Supra, note 8 at 968.
5 See The Prostitution Reference, supra, note 8 (holding that s. 2(b) protects the right to solicit
an act of prostitution); R. v. Keegstra, supra, note 2 (holding that s. 2(b) protects hate propaganda).
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that section 2(b)’s guarantee of freedom must protect all expressive activity
equally, and without regard to its content.”1 In principle, therefore, offensive and
scurrilous thoughts stand on the same footing as the ideas we prize. In reaching
that conclusion, the Supreme Court of Canada recognized that an egalitarian
interpretation of section 2(b) advances democratic values and protects those
who would challenge orthodoxy from being silenced.52
In doctrinal terms, an egalitarian conception of expressive freedom is
implemented through the principle of content neutrality. That principle provides
a standard of breach under section 2(b) which acknowledges the infringement
whenever the government prohibits expression on the basis of its content. 3 In
such circumstances, a justificatory analysis under section 1 is imperative.
In cases like Butler, where a statutory prohibition is content-based, a rule
against purposeful interference renders further discussion of section 2(b)’s
underlying values unnecessary. However, the difficulty is that, unless they
infuse the analysis under section 1, those values will be lost and the equilibrium
of the Charter’s equation thereby upset.
By “contextualizing” its section 1 analysis, the Supreme Court of Canada
acknowledged that there must be a “synergetic relation” between “the values
underlying the Charter and the circumstances of a particular case.”54 The con-
textual perspective assesses the justifiability of an infringement, not only in
terms of the objectives which may support the breach, but as well, in terms of
the countervailing values which may vindicate the liberty interest at stake. As
described by Madam Justice Wilson in Edmonton Journal, the contextual
approach “attempts to bring into sharp relief the aspect of the right or freedom
which is truly at stake,” as well as “the relevant aspects of any values in com-
petition with it.”55
Though it acknowledges the need to address both sides of the equation
under section 1, Wilson J.’s contextual approach proposed a dichotomy between
section 2(b)’s guarantee, which was characterized, somewhat negatively, as
“abstract” or formalistic, and the analysis under section 1, which was portrayed
as “contextual” and, by implication, more realistic. 6 Unfortunately, that juxta-
position has enabled the Court to discard section 2(b)’s egalitarian conception
5 1Supra, note 8 at 970 (stating that the guarantee of free expression protects all content of expres-
sion).52See, for example, Dolphin Delivery, supra, note 8 at 584-85 (citing Boucher v. R., [1951]
S.C.R. 265 at 288, 2 D.L.R. 369).
53Irvin Toy, supra, note 8 at 974 (stating that s. 2(b) is infringed if “the government’s purpose
is to restrict the content of expression by singling out particular meanings that are not to be con-
veyed”). A breach can also occur when government action has an unconstitutional “effect” on
expressive freedom.
54Keegstra, supra, note 2 at 737.
55Supra, note 8 at 1355-56 (concurring opinion).
56 [O]ne should not balance one value [s. 2(b)’s guarantee] at large and the conflicting
value [under s. 1] in its context. To do so would prejudge the issue by placing more
weight on the value developed at large than is appropriate in the context of the case
(ibid. at 1353-54).
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of expression under section 1, and to label certain expressive activity value-
less.” By separating freedom of expression from its reasonable limits, the text
of the Charter enabled the following contradiction to evolve: though content is
irrelevant in defining the scope of the guarantee under section 2(b), it then
becomes “destructive of free expression values””8 to treat all expression as equal
under section 1.
In accordance with that methodology, Sopinka J. effectively negated
one side of the constitutional equation. Despite the Manitoba Court of Appeal’s
willingness to exclude obscenity from section 2(b), precedent required a finding
that section 163(8) violates the Charter 9 Because the statutory prohibition is
content-based, a finding of purposeful interference did not require reference to
section 2(b)’s underlying values. To balance the equation, discussion of those
values was therefore necessary under section 1. However, without explaining
how the shift to section 1 nullified the egalitarian conception of expressive free-
dom that prevailed under section 2(b), Sopinka J. simply declared that obscenity
“does not stand on equal footing with other kinds of expression which directly
engage the ‘core’ of the freedom of expression values. ‘
Once that characterization has been made, the permissibility of limits is
essentially self-evident. As McLachlin J. observed in Keegstra, “[i]f one starts
from the premise that the speech [in question] is dangerous and without value,
then it is simple to conclude that none of the commonly-offered justifications
for protecting freedom of expression are served by it.”61 In the “context” of hate
propaganda, Mr. Justice Sopinka expressed agreement with that view by concur-
ring with her dissent.6’
C. Standards of Justification
The standard of justification applied in Butler bears little resemblance to
the Oakes test, as originally promulgated and as implemented in the criminal
justice jurisprudence. Though Oakes continues to serve as a monolithic standard
of justification, the Supreme Court of Canada has institutionalized a series of
retreats. First it held in R. v. Edwards Books andArtLtd63 that the section I ana-
lysis can vary with the circumstances of the case. Then, as discussed above,
Wilson J. suggested in Edmonton Journal that the application of Oakes should
be informed by “context. ‘
57See, for example, Keegstra, supra, note 2 at 760 (stating that content is irrelevant to s. 2(b),
which places a high value on freedom of expression “in the abstract,” but that the nature of the
expressive activity is central to the s. 1 analysis).
5Slbid at 760.
59Butler, supra, note 2 at 486-90.
6Ibid. at 500. Although the Supreme Court of Canada considers the relative value of expression
for the limited purpose of determining which version of proportionality to apply, that assessment
influences the entire s. 1 analysis, including the permissibility of the government’s objective.
61Supra, note 2 at 841 (dissenting opinion).
62LaForest J. also joined the dissent in Keegstra, but found it unnecessary to address the pre-
631[1986] 2 S.C.R. 713 at 722, 35 D.L.R. (4th) 1.
64Supra, note 8 at 1355-56.
sumption of innocence.
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Irwin Toy not only established section 2(b)’s standard of breach, it intro-
duced the most significant modification of the Oakes test thus far. There, the
Court suggested that a strict standard of proportionality should apply when the
government acts as the “singular antagonist,” as it does in the criminal justice
context. Otherwise, when the government invokes its prerogative to regulate,
and to implement socio-economic policy, a more deferential standard should
apply.’ The distinction assumes that government authority is presumptively less
insidious when it is invoked to protect a vulnerable group or otherwise allocate
scarce resources, than when it is exercised to prosecute and punish individuals
under the criminal law.
Irwin Toy’s distinction between the government as antagonist and the
government as policy-maker recognized the implausibility of a universal stand-
ard of justification. Charter adjudication is too complex and diverse to be man-
aged by a single test under section 1. Unfortunately, however, the distinction is
unsound. Whenever the government exercises its coercive authority in breach of
the Charter, it acts as the antagonist of those whose liberty interests have been
infringed. Accordingly, it is difficult to understand how a strict standard of jus-
tification can be restricted in application to the criminal justice system.66 More-
over, the government undeniably protects “the vulnerable” when it exercises its
criminal law authority.67 From that perspective, it is also difficult to understand
why the deferential standard cannot apply in criminal cases. These flaws have
enabled the Court to engage in a case-by-case manipulation of Oakes; and, as
Butler demonstrates, it chooses between strict and deferential standards of jus-
tification on purely subjective grounds.”
Irwin Toy upheld a regulation aimed at protecting children under the
age of 13 from manipulative advertising. In such circumstances, the Court’s
choice of a relaxed standard of justification was less controversial. In Butler,
the constitutionality of more than 250 charges under the Criminal Code was
at stake. Though legal rights were not implicated, the scope and severity of the
infringement indicated that a strict standard should apply under section 1. As
Charron Dist. Ct J. stated in R. v. Fringe Product Ltd, “[w]here the legisla-
tive action pertains to a more abstract notion of harm, the court must be mind-
ful of the danger of excessive state intrusion and carefully consider the criteria
set out in our Charter.”69 Without explanation, Sopinka J, invoked Irwin
61Supra, note 8 at 993-94.
66See, for example, McKinney v. University of Guelph, [1990] 3 S.C.R. 229 at 397-405, 76
D.L.R. (4th) 545 (per Wilson J., dissenting, where equality rights were violated, from the appli-
cation of Irwin Toy’s relaxed standard of justification).
a collective entity and in individual terms, from the commission of offences.
67Presumably, the purpose of the criminal law is to protect society, which is vulnerable both as
6SSee also Seaboyer, supra, note 2 at 626-27 (assuming, per McLachlin J., that the singular
antagonist model can be displaced in a contest between the state and the accused, if the legislature
is attempting to “fix a balance between competing groups in society”); R. v. Downey, [1992] 2
S.C.R. 10 (stating, per Cory J., in a decision upholding a Criminal Code prohibition against pimp-
ing, that the Charter should not be used to deprive a vulnerable segment of society of a measure
of protection).
69(1990), 53 C.C.C. (3d) 422 at 440, 46 C.R.R. 154 (Ont. Dist. Ct).
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Toy’s vulnerable group rationale to support a diluted proportionality analy-
sis.70
D. The Government’s Objective: Harm v. Morality
The first part of the Oakes test requires the government to advance an
objective of sufficient importance to warrant the violation of a right.7′ The ques-
tion in Butler, therefore, was whether the government’s objective in suppressing
sexually explicit materials outweighed the interest in protecting freedom of
expression. Although rarely invalidated, the government’s objective is of crucial
importance nonetheless, because it conditions the proportionality analysis.
When the objective is conceptualized in broad, abstract terms, the requirements
of proportionality are easier to satisfy; a narrow objective, by contrast, requires
more carefully tailored means. In addition, an analysis that looks exclusively at
the government’s interest in violating the Charter distorts the balancing exer-
cise. In concluding that section 163(8)’s objectives are important enough to
override the Charter, Sopinka J. did not feel obliged to discuss section 2(b)’s
underlying values. Those values are considered under section 1 –
not to
strengthen protection of the guarantees, but to dilute the proportionality analy-
sis.72
Mr. Justice Sopinka initially conceded that the Charter prohibits the
government from preventing “dirt for dirt’s sake.”’73 Because the Charter pre-
cludes Parliament from coercing a particular conception of morality, it became
necessary to reformulate the objective of obscenity law.74 Thus transformed, the
avoidance of harm, and not moral disapprobation, became section 163(8)’s
overriding objective. 5 Whatever may once have been true, Sopinka J. declared,
obscenity can be prohibited today because “[o]ur understanding of the harms
caused by these materials has developed considerably since [1959]. “76 Those
harms, which exist independent of conventions of propriety, consist of a threat
to equality values, reinforcement of a negative self-perception on the part of
women, and an impediment to the promotion of gender equality.77
Butler conceptualized obscenity’s harm in generalized, rather than parti-
cularized, terms. Protecting the victims of sexual assault was, accordingly, not
70Butler, supra, note 2 at 505. As suggested above (supra, note 60) the relative value of expres-
sive activity determines which version of proportionality will apply; the ensuing discussion dem-
onstrates how the failure to acknowledge or respect expressive freedom influences the first part of
the Oakes test, which requires a substantial and pressing objective.
77Ibid. at 497.
is prescribed by law (ibid. at 490-91).
portionality analysis. See supra, notes 66, 67.
71This Comment does not discuss the Court’s conclusion that s. 163(8) constitutes a limit that
72Those values are further undermined by a methodology that restricts their relevance to the pro-
73Supra, note 2 at 492.
741bid. at 493.
75lbid.
76Ibid. at 494-95. Although Big M Drug Mart, supra, note 44 rejected the concept of “shifting
purposes,” as a way of re-rationalizing unconstitutional government objectives, this Comment does
not discuss that aspect of Sopinka J.’s reasons.
1992]
CASE COMMENTS
1149
one of section 163(8)’s objectives. Nor, with the exception of child participants,
did the Court consider it necessary to prevent the exploitation of those who par-
ticipate in the creation of obscene materials. Because the Court’s objective was
advanced at the broadest level of generalization, what section 163(8) fundamen-
tally prohibits is an unacceptable conception of equality and of female sexual-
ity.7′ However, if it is not permissible for Parliament to suppress dirt for dirt’s
sake, because that would constitute the coercive imposition of a standard of
morality, it is difficult to see how it is permissible for Parliament to impose a
particular conception of equality.
In addition, by separating its definition of obscenity from the constitutional
analysis, Butler created problems of interpretation. Thus Sopinka J. left unclear
which standard governs: should degradation and dehumanization be defined by
the Charter discussion’s protection of equality values, or does the doctrinal
criterion of a substantial risk of harm have to be satisfied? On the assumption
that sexually explicit material may predispose men to mistreat women, Butler’s
definition of obscenity required proof of a substantial risk of harm. Under sec-
tion 1 of the Charter, however, the Court held that the government can ban
materials which threaten gender equality or have negative implications for
women’s self-worth. Though Butler’s doctrinal theory of harm implied the exis-
tence of a causal relationship between exposure to obscenity and anti-social
conduct, its Charter counterpart did not.
By stating the government’s objective in broad, abstract terms, and endor-
sing equality values without any countervailing reference to freedom of expres-
sion, Sopinka J. made it difficult, if not impossible, for section 163(8) to fail the
proportionality test.
E. The Proportionality Analysis
To satisfy section 1, the government must prove, not only that its objective
is justifiable but as well, that its implementation does not unduly compromise
constitutional values. The proportionality test ensures minimal interference with
rights protected by the Charter; it requires the government to establish that the
infringement is rational in relation to its objective, that the infringement does
not violate the Charter more than is necessary, and, despite its permissibility,
that the government’s objective has not been pursued at disproportionate
expense to constitutional guarantees.79 Though intended by Oakes to be strict,
the Court’s proportionality analysis in Butler was pro forma, at best.
The first element of the proportionality test examines the relation between
the infringement and the legislative objective. The rational connection test has
at times been interpreted as a requirement that the government demonstrate the
efficacy of its measure; an infringement that does not advance the government’s
objective may be found irrational. Significantly, the Court divided on that issue
78Though Sopinka J.’s doctrinal discussion did not completely preclude the possibility that sex-
ually explicit materials might degrade or dehumanize males, his Charter analysis focused exclu-
sive attention on obscenity as “gender-based harm.”
790akes, supra, note 15.
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in Keegstra: there, McLachlin J. rejected the majority opinion’s assertion that
the Criminal Code’s prohibition of hate propaganda is rationally connected to
the elimination of race prejudice. She concluded, instead, because suppressing
expression might undermine that objective, that the government failed to estab-
lish a “strong and evident” connection between the criminal prohibition and
achievement of its objective. 80
Despite joining her dissenting opinion in Keegstra, Sopinka J. did not con-
sider it essential in Butler to articulate a concrete connection between the sup-
pression of sexually explicit materials and the promotion of gender equality. In
Keegstra he had agreed that suppressing hate expression might compromise the
elimination of race prejudice. In his view, the difference is that though hate-
mongers may become martyrs through the state’s attempt to silence their views,
pornographers do not: the suppression of obscene materials does “nothing” to
promote the pornographer’s cause.81
In principle, section I of the Charter is indifferent to the efficacy of the
government’s legislation: so long as its measures are consistent with the Con-
stitution, it is irrelevant that they may be ineffective. 2 What the Charter does
require is proof that the government has not unduly infringed rights by creating
a prohibition that is unrelated to its objective. Although a classification that is
irrational in that sense will also be ineffective, it is not unconstitutional for that
reasonY By the same token, a classification may address the government’s pur-
pose, but be found unconstitutional nonetheless. 4
The question in Butler was whether section 163(8) defines the prohibition
with sufficient precision to avoid unduly infringing expressive freedom. By
adopting a generalized conception of harm, Sopinka J. made it virtually impos-
sible for the statutory definition of obscenity to fail the rational connection test.
Thus he stated that Parliament could reasonably have thought that exposure to
obscene materials might contribute to the “desensitization of individuals.”‘ 5 The
use of the criminal sanction was accordingly linked to the objectives of expres-
sing “our community’s disapproval” of materials which “potentially victimize
women,” and restricting “the negative impact such materials have on changes
in attitude and behaviour.”86
8Keegstra, supra, note 2 at 854 (La Forest & Sopinka JJ., concurring).
81Butler, supra, note 2 at 504. The unarticulated point was that, although suppressing hate
propaganda may be seen as censorship, the suppression of pornography is self-evident and there-
fore unobjectionable.
82As the courts have stated on innumerable occasions, the constitutionality of legislation does
not depend on the judiciary’s perception of the reasonableness or wisdom of legislative policy.
83Irrational classifications may not be unconstitutional; i.e., an income tax provision that deter-
mines marginal rates of taxation according to hair colour is surely irrational, but not necessarily
unconstitutional.
84See, for example, Osborne, supra, note 8 (invalidating a prohibition against partisan public
service activity, despite the legitimacy of the government’s objective of preserving a neutral public
service).
85Supra, note 2 at 504.
8″Ibid.
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The second element of the proportionality test requires the government to
prove that its prohibition constitutes a minimal impairment of the constitution-
ally protected right. To satisfy that criterion, the scope of the prohibition must
be defined with certainty and precision. Failure to do so compromises the
constitutional rights of those who are unjustly caught by an over-reaching
provision. However, despite earlier acknowledging lacunae in the legislation,
which left its scope unclear, Sopinka J. found no breach of minimal impair-
ment. 7
In addition, after having stated that section 163(8)’s objective was the
avoidance of harm, Sopinka J. explicitly rejected the suggestion that proportion-
ality required proof of any harm. Citing Irwin Toy’s vulnerable group rationale,
he stated that Parliament was entitled to suppress expressive activity without
proof of harm.s He also held that greater precision in defining the scope of the
prohibition was unnecessary because “[t]he intractable nature of the problem
and the impossibility of precisely defining a notion which is inherently elusive
makes the possibility of a more explicit provision remote.” 9
A prohibition against an open-ended and indeterminate category of degrad-
ing or dehumanizing depictions of female sexuality could hardly be less precise.
Despite the claim that greater precision is “remote,” other jurisdictions have
found ways to specify the harm that is prohibited.9″ More troubling yet is Mr.
Justice Sopinka’s assumption that the requirements of the Charter should be
waived whenever it is difficult, awkward or inconvenient for Parliament to com-
ply. If obscenity cannot be defined with sufficient precision to avoid undue
interference with expressive freedom, then perhaps the Charter should protect
it from being criminalized.
It became clear, in the course of Butler’s proportionality analysis, that
obscenity can be prohibited because its content is offensive and therefore per se
harmful. As long as it is possible to speculate that sexually explicit materials
create some negative implications for gender equality, Mr. Justice Sopinka’s
standard of proportionality will be satisfied.
F. Conclusion
Principles of tolerance and expressive freedom receive little or no recog-
nition in the Supreme Court of Canada’s decision in Butler. Not only did the
Court maximize the definition of obscenity and then dilute the Charter’s
requirements, it endorsed the suppression of offensive expressive activity with-
out once acknowledging the consequences for section 2(b)’s guarantee of
expressive freedom.
STSupra, notes 10, 31 and accompanying text.
88Supra, note 2 at 505.
S91bid. at 506.
90See, for example, N.Y. Penal Law 263.00(3) (Mckinney 1980) (defining specific types of sex-
ual conduct for purposes of a prohibition against child pornography; discussed in New York v. Fer-
ber, 458 U.S. 747 (1982), and Fla. Stat. Ann. 847 (cited and discussed in Skywalker Records Inc.
v. Navarro, 739 F. Supp. 578 (S.D. Fla. 1990))).
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m. Orthodoxy and Expressive Freedom
A.
Introduction
The Supreme Court of Canada has been praised for institutionalizing the
supremacy of equality values.9′ Especially when matched against those values,
expressive freedom fares poorly; whereas equality values are portrayed as real
and fundamental, freedom of expression is discounted as a concept that is
abstract and formalistic. Ironically, as Keegstra and Butler demonstrate, a par-
ticular conception of equality can only be enforced by suppressing “unequal”
thoughts, ideas, and attitudes. 2
B. Conceptions of Harm
Expressive freedom can be suppressed where the government advances an
objective that outweighs the interest in protecting a constitutional guarantee.
The scope of the prohibition is accordingly determined by the way in which the
harm to be prevented is conceptualized. The more precisely the harm is parti-
cularized, the narrower the scope of the prohibition. Generalized conceptions of
harm, by contrast, permit the government substantial latitude. Ultimately the
nature and severity of the interference with expressive freedom depends on the
way the harm is conceptualized.
Obscenity threatens to create a variety of harms which can be plotted along
a spectrum. Particularized theories of harm, which require a direct connection
between obscenity and manifest acts of illegality, define one end of the spec-
trum. At the other end, a cluster of generalized conceptions of harm will be
found. On the assumption that sexually explicit materials are per se harmful,
those theories would suppress such materials without proof of direct conse-
quences. Prior to the Charter, particularized theories of harm were rejected in
favour of a generalized conception of obscenity as offensive to conventional
standards of morality.93 Butler’s dilemma was that, although the suppression of
sexually explicit material is no longer permissible on purely moral grounds, a
particularized conception of harm would not permit the Court to suppress mate-
rials simply because they are offensive.
In an attempt to avoid either extreme and plot a point along the spectrum,
the Court essentially invoked a gender-based theory of harm. Unfortunately,
conceptualizing the issue in such terms does little to resolve the dilemma; a
choice between particularized and generalized conceptions of harm must still be
made. For example, a gender-based theory of harm that focuses on the problem
of violence against women would result in a prohibition against sexually expli-
cit materials which involve violence or the commission of a crime. The same
91Supra, notes 4, 5.
92 1n neither case did the Court consider the possibility that equality can protect expressive free-
dom by providing an anti-censorship rationale.
93Butler, supra, note 2 at 492.
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CASE COMMENTS
1153
focus could also support a prohibition that suppresses material which is con-
nected to the commission of sexual assault offences.94 In either case the prohi-
bition rests on a particularized theory of harm.
As the focus shifts away from the prevention of consequences that can be
traced to expressive activity, the harm associated with sexually explicit materi-
als can only be articulated in abstract, generalized terms. Under that conception,
deviation from a standard of morality, in the past, or of gender equality, today,
is the harm to be prevented. Gender-based theories of harm would prohibit sex-
ually explicit materials for a variety of reasons: because they reinforce an ide-
ology of gender domination,9′ portray female sexuality in a false and degrading
manner,” or “harm” women in their social context.97 The difficulty is that
gender-based responses frequently collapse the distinction between particular-
ized and generalized conceptions of harm.9″
Likewise, the decision in Butler shifted uncomfortably between particular-
ized and generalized conceptions of harm. As discussed above, the Court cre-
ated a fundamental ambiguity between two theories of harm, which will
unavoidably cause problems of enforcement. In addition, it defined degradation
and dehumanization in terms which are inchoate and inescapably abstract. A
comparison with Keegstra is once again instructive. There, though unable to
alleviate the concerns of McLachlin, LaForest and Sopinka JJ., former Chief
Justice Dickson addressed concerns about the inherent subjectivity of sup-
pressing hate expression by defining the offence narrowly to minimize the inter-
ference with expressive freedom.99 In Butler, no member of the Court chal-
lenged a definition of obscenity that imposes criminal punishment on those
whose expressive activity violates an elusive standard of gender equality.
Mr. Justice Sopinka claimed that the enforcement of gender equality is fun-
damentally distinct from-the imposition of moral values. However, had the
Court defined obscenity as sexually explicit material that degrades or dehuman-
izes human sexuality, its conception of harm would unarguably have collapsed
into morality. A theory of harm that prohibits depictions of female sexuality
because they conflict with a standard of gender equality surely cannot stand on
94There the permissibility and scope of the prohibition would depend on the relevance and reli-
ability of empirical data.
(claiming that pornography is a “political practice”).
95See, generally, C. MacKinnon, “Not a Moral Issue” (1984) 2 Yale L. & Pol. Rev. 321 at 322-23
96See, for example, S. Noonan, Annotation of R. v. Wagner (1985) 43 C.R. (3d) 319 at 319-20.
97See, for example, K. Mahoney, “Obscenity, Morals and the Law: A Feminist Critique” (1984)
17 Ottawa L. Rev. 33 at 51 (claiming that pornography causes public harm which makes many
women’s goals, “such as greater participation in public life, equal pay for work of equal value and
daycare … that much more difficult to achieve”).
98See, for example, S.’ Noonan, “Pornography: Preferring the Feminist Approach of the B.C.
Court of Appeal to that of the Fraser Committee” (1985), 45 C.R. (3d) 61 at 62 (stating that fem-
inist definitions of pornography “stress the presence of violence, inequality, and objectification”
and focus concern not only on pornography as it endorses violence against women and “creates
false representations of female sexuality,” but also on the manner in which it “reduces women as
a group to mere objects of sexual access…..
99Supra, note 48.
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better ground.00 Whether characterized as morality or as gender-based harm, the
prohibition in either case permits expressive activity to be suppressed because
it is inconsistent with a conventional standard of propriety.
C. Expressive Freedom: Rhetoric and Reality
While simultaneously upholding limitations on section 2(b), the Supreme
Court of Canada dutifully recites the rhetoric of expressive freedom. That rhet-
oric acknowledges the debt democratic process owes to freedom of expression,
and otherwise traces the values we prize to a commitment to expressive free-
dom. It acknowledges that, to be meaningful, the right of expression must not
only be free, but equal as well.
Those values are reflected in a generous interpretation of section 2(b),
which asserts, as a fundamental principle of the Charter, that “everyone can
manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and
mind, however unpopular, distasteful or contrary to the mainstream.” ” Unfor-
tunately, that vision of expressive freedom is ephemeral: the Charter’s egalitar-
ian conception of the right does not survive section 2(b). Once a breach has been
found, section 2(b)’s underlying values are dismissed as abstractions which
must yield, under section 1, to an assessment of priorities based on context.
According to former Chief Justice Dickson, section 1 contemplates a “syn-
ergetic relation”‘0 2 between the values underlying the Charter and the circum-
stances of a case. Thus the Court held in Keegstra and Butler that expressive
activity can be suppressed, though the threat of harm is speculative, where its
content is valueless. The analysis in both instances was synergetic but circular
as well: when the sole purpose of a prohibition is to suppress the content of the
communication, the harm may often be speculative; at the same time, when the
harm is general and speculative, rather than concrete and particular, the prohi-
bition can only be explained as an attempt to silence those whose views are
unorthodox.
This same synergy can be found in the First Amendment jurisprudence of
the Cold War era, which upheld the suppression of communist sympathizers
throughout the 1950s. Although it no doubt preyed on the fears and insecurities
of that era, the advocacy of socialist forms of government posed no direct threat
of harm. Communist sympathizers were convicted nonetheless because the
United States Supreme Court refused to apply the clear and present danger test;
as Jackson J. explained, a standard of justification that required proof of a par-
ticularized harm would have forced the judiciary to “appraise imponder-
ables.”‘0 3 To sustain the suppression of First Amendment values in the absence
‘0Gonthier J.’s concurring reasons expose the fallibility of Sopinka J.’s distinction between
morality and harm.
101Irwin Toy, supra, note 8 at 968.
l2Keegstra, supra, note 2 at 737.
103Dennis v. United States, 341 U.S. 494 at 570 (1951) (concurring opinion). Though the precise
nature of the harm remains speculative, Keegstra and Butler likewise permitted the suppression of
expressive activity that offends democratic values.
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of a clear and present danger, it was necessary for the United States Supreme
Court to stigmatize the underlying expressive activity. Advocates of commu-
nism could be punished, because “[n]ot every type of speech occupies the same
place on the scale of values,””” and, “[o]n any scale of values we have hitherto
recognized, speech of this sort ranks low.” ‘ Dismissing political speech as va-
lueless enabled the the American judiciary to legitimize the persecution of sus-
pected communist sympathizers.
Today, the Cold War is remembered as an era of unforgivable suppression.
It can be easily forgotten, nonetheless, that it was not political expression per
se that was suppressed during this period, but political expression that endorsed
a particular conception of government and the state. Though the comparison
will be resisted, there is a parallel in Canada’s section 2(b) jurisprudence under
the Charter. In the McCarthy era, expressive freedom was suppressed to protect
democracy; likewise Keegstra and Butler invoked “democratic values” to pro-
hibit expression that advances an objectionable conception of racial and gender
relations.
Ultimately, the Supreme Court of Canada’s willingness to prohibit expres-
sive activity that offends fundamental values reflects a particular conception of
democracy. In the absence of particularized harm, American constitutional juris-
prudence denies government the authority to enforce a particular set of values.
First Amendment doctrine is based on an underlying assumption that, on bal-
ance, democratic process is better served by open debate and competition
between values: by a marketplace of ideas.0 6
In upholding limits on hate propaganda in Keegstra, former Chief Justice
Dickson rejected a conception of expressive freedoa that would protect open
debate. There he suggested that Parliament could prohibit true expression as
well as falsehood. 7 In reaching that conclusion, he rejected the theory of the
marketplace because it was not apparent to him that “rationality will overcome
all falsehoods in the unregulated marketplace of ideas.”‘ 8 The difficulty, in his
view, was not that truth cannot be separated from falsehood but rather, that there
is no guarantee that “unregulated” debate will be rational. Where emotion and
influence intrude into debate, a risk of irrational results is created.
It is the imperfections of the marketplace, and particularly the risk that irra-
tional views may gain acceptance, that prompted Dickson C.J. to endorse the
benevolent intervention of the state. If the marketplace is imperfect, it must be
because individuals are incapable of rational decision-making. By the same
token however, government authority can only be exercised by individuals who
inevitably must respond to the same social and political pressures as those in the
marketplace. In the circumstances, there is little reason to believe, either in the-
104Ibid. at 544 (per Frankfurter J., concurring).
‘051bid. at 545.
06’rhe concept originated inAbrams v. United States, 250 U.S. 616 (1919) (per Holmes J., dis-
senting).
’07Supra, note 2 at 781.
‘0Ibid at 763.
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ory or practice, that government will act in a way that is presumptively more
rational.
In the end, the question is whether democratic values are better served by
an egalitarian conception of expressive freedom or by an alternative conception
that grants government the authority to control the form and content of the
debate. The answer to that question depends, in turn, on how the right to par-
ticipate is valued. Under Canada’s Charter of Rights and Freedoms that right is
conditional: whereas those who support the Charter’s “fundamental values” are
entitled to invoke section 2(b)’s protection, those who challenge its values are
not.
Conclusion
It is strongly ingrained in our culture that sexually offensive material
offends moral values and gender equality. We are daily reminded that while vio-
lence against women is a social reality, gender equality is not. In such circum-
stances, it is difficult to defend freedom of expression except on grounds of
principle. However, precisely because the principle is abstract and sexually
explicit material is seen as valueless, the interest in protecting expressive free-
dom can be easily dismissed. Addressing women’s reality through the suppres-
sion of sexual expression that offends equality values appears to advance the
Charter’s objectives without apparent cost to democratic values.
Though gender equality is an aspiration few would dispute, its attainment
poses questions of broad and perplexing dimensions. Whether and to what
extent expressive freedom poses an obstacle to that goal is one of many sources
of controversy. Even in the absence of conclusive empirical data, it may not be
unreasonable to assume that some sexually explicit material may discourage or
undermine equality values. Unfortunately, however, such an assumption does
not resolve the issue; instead, it raises further questions whether the costs of
enforcing those values are worth the benefits that may be gained.1″9
There can be little doubt that Butler’s ambiguous conception of harm will
create problems of enforcement. It is open to question, for example, whether
materials which offend an egalitarian conception of female sexuality should be
equated with those which combine explicit sex with violence. Such an equation
creates the risk that a generalized theory of harm will trivialize the particular
injury that occurs when acts of violence are committed against women. It is also
open to question whether “values” should be imposed through the criminaliza-
tion of offensive expression.
The impairment of expressive freedom that Butler endorses is, in any
event, disproportionate to the harm that can fairly be attributed to offensive sex-
ual materials. To avoid collapsing into the censorship of unpopular expression,
a constitutional guarantee of expressive freedom must reflect a commitment to
109See, for example,American Booksellers Association v. Hudnt, 771 F.2d 323 (7th Cir. 1985)
(acknowledging the effects of pornography, but ultimately upholding the interest in protecting
expressive freedom).
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principle. It is the freedom to disagree that is at risk and, in the absence of par-
ticularized harm, that is the freedom section 2(b) should protect. It is disappoint-
ing that the Supreme Court of Canada is unwilling or unable to acknowlege that
censorship is as much a part of historical experience and contemporary reality
as social inequality. Until the Court recognizes that censorship is real, section
2(b)’s guarantee of expressive freedom will remain an abstraction, detached
from context and devoid of meaning.
