This case concerned the impact of the Charter on the government’s power to criminalize the sale of pornographic materials.
LEAF intervened before the Supreme Court of Canada.
Donald Butler was a video store owner who sold pornographic videos and other material. He was charged under the Criminal Code’s obscenity provision for selling, possessing, and publicly exposing obscene material. He argued this violated his freedom of expression under s. 2(b) of the Charter.
The trial judge agreed that obscene material could still be protected under s. 2(b). The judge held that the government could only criminalize the sale of materials depicting violence or cruelty mixed with sexual activity, showing lack of consent to sexual activity, or containing dehumanizing material. Accordingly, Butler was convicted of 8 counts relating to distribution of 8 films, but was acquitted on remaining charges.
The Manitoba Court of Appeal disagreed with the trial judge, and found that the materials were not protected under s. 2(b) because they contained undue exploitation of sex and degradation of human sexuality. As a result, they convicted Mr. Butler on all counts. Mr. Butler appealed to the Supreme Court of Canada.
LEAF argued that pornography amounted to sex discrimination against both individual women and women as a group. The regulation of pornography could be constitutionally justified using a harms-based approach, which focused on the actual harms done by and through pornography. Some pornography was not protected under s. 2(b) of the Charter, because it was a violent form of expression or because it was a discriminating form of expression under s. 28 of the Charter. Any limitation on s. 2(b) rights was justified under s. 1 because of the social interest in equality in society.
The Supreme Court held that the Criminal Code provision violated s. 2(b) of the Charter, but that the infringement was justified under s. 1. The objective of the provision was the avoidance of harm to society – with harm meaning that people become predisposed to act in an anti-social manner. It was reasonable to presume that exposure to images had an impact on an individual’s attitudes and beliefs, and the provision only caught material creating a risk of harm to society.
LEAF is grateful to Kathleen Mahoney and Linda Taylor, counsel in this case.
Download the factum here.
Read the Supreme Court’s decision here.
Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].