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(2002) 7 Media & Arts Law Review 195

CANADAS OBSCENITY LAW AFTER LITTLE SISTERS ALEARDO ZANGHELLINI1


ABSTRACT [195] Following a Supreme Court decision in 1992, the regulation of obscenity in Canada was justified on the ground that this kind of speech contributed to maintaining gender oppression. This innovative rationale for obscenity regulation was undermined by a recent decision on homosexual pornography, issued by a Supreme Court with an altered membership. While this Court could have consistently justified the regulation of homosexual pornography on the basis of the harm to women rationale, it clearly chose not to do so. Although the new judgment was presented by the new Court as being in a relation of continuity with the 1992 one, in practice its effect is likely to be that of allowing the Canadian system of obscenity regulation to accommodate pro-regulation and pro-censorship concerns that have little or nothing to do with the principle of equality between the sexes.

Introduction Canadian constitutional jurisprudence tends to recognize that almost everything is protected expression under the constitutional free speech guarantee, which reads: Everyone has the following fundamental freedoms: freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.2 Recognising that in principle the freedom of expression guarantee covers all kinds of speech irrespective of its content, however, does not prevent Canadian jurisprudence from concluding that certain limits on freedom of expression are constitutionally justifiable. Reaching this conclusion is made possible by the existence of, and is done by invoking, s 1 of the Canadian Charter of Rights and Freedoms (the Charter), Canadas equivalent of the American Bill of Rights. This provision [196] clarifies that the Charter guarantees the rights and freedoms set out in

JD Cum Laude (Milan); LLM (British Columbia); M St Graduand (Oxford), PhD Candidate (Sydney). 2 Canadian Charter of Rights and Freedoms, Pt 1 of the Constitution Act 1982, being Sch B to the Canada Act 1982 (UK) c 11, s 2(b). The exception to the principle that s 2(b) covers virtually all expressive activities has to do with violent symbolic speech, as the form the speech takes in this case prevents it from qualifying as freedom of expression at all: see Attorney General of Quebec v Irwin Toy Ltd [1989] 1 SCR 927, 970.

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it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.3 In 1992 the Supreme Court of Canada found itself facing the task of deciding whether criminalising obscenity was constitutional in Canada, in terms of respect for free speech principles. Section 163(8) of the federal Criminal Code defines obscenity as material a dominant characteristic of which is the undue exploitation of sex.4 In R v Butler, 5 the Court established that this expression identifies sexually explicit representations ascertained, on the basis of community standards, to convey messages inimical to gender equality.6 Such representations, the Court argued, are harmful to society because they involve the risk of predisposing individuals to enact conduct (namely, violence and discrimination against women) that society formally recognizes as incompatible with its proper functioning. 7 Accordingly, the legal regulation of obscenity (through the criminal law system) was found to be, albeit an infringement of freedom of expression, one that was constitutionally justifiable in a free and democratic society, on the basis of the already mentioned s 1 of the Charter. The interest which is commonly invoked in order to defend obscenity laws everywhere but in the post-Butler Canada is public morality. This expression is a
Charter, above n 2, s 1. The Oakes test is the standard that has been devised to give concrete application to s 1 of the Charter. According to the Oakes test, the court must first determine whether the objective of the measures responsible for restricting a constitutional right/liberty are of sufficient importance, and this requires that they be pressing and substantial. Secondly, there must be a rational connection between the objective and the measures meant to accomplish this objective. Thirdly, such measures must be shown to impair the right or liberty at issue as little as possible. Finally, there must be proportionality between the deleterious effects brought about by such measures and the objective that the measures purport to further: the more serious the deleterious effects, the more important must the objective be. See Her Majesty the Queen v Oakes [1986] 1 SCR 103, 13840. The case Canadian Broadcasting Corp v Dagenais [1994] 3 SCR 835, 839 is understood as adding to the test the further requirement that there must be proportionality between the deleterious effects and the salutary effects of the measures at issue. However, Butler precedes, chronologically, Dagenais, and does not concern itself with this fifth element of the constitutionality test. 4 Criminal Code, RSC 1985, c C-46, s 163(8). The full section reads: For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex or of sex and one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene. 5 [1992] 1 SCR 452; 89 DLR (4th) 449. 6 See below nn 2630 and accompanying text. On the connection between pornography and gender oppression see, eg: Andrea Dworkin and Catharine MacKinnon, Pornography and Civil Rights: A New Day For Womens Equality (1988); Catharine MacKinnon and Andrea Dworkin (eds), In Harms Way (1997); Christopher N Kendall, Gay Male Pornography After Little Sisters Book and Art Emporium: A Call for Gay Male Cooperation in the Struggle for Sex Equality (1997) 12 Wisconsin Womens Law Journal 21. 7 See Butler [1992] 1 SCR 452, 485.
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short-hand to refer to the idea that, from the point of view of traditional sexual morality, sex, and especially non-procreative sex, is the object of societal taboos. As such, sexually explicit material is regarded as dirty, dangerous, inappropriate, indecent, shameful. It is also considered to offend against legitimate feelings of sexual propriety and modesty, and to constitute, by virtue of its very existence, an attack to the sensitivities of right-thinking people. Finally, it is believed to corrupt those who are most vulnerable, in particular turning youths into promiscuous, lascivious, libertine and degraded characters. As a rationale for the legal regulation of obscene material, public morality is increasingly losing credit. In insisting that the Canadian system of obscenity law is in place to protect women from gender-based inequality and violence rather than to further the traditional interest in public morality, the Supreme Court of Canada made an unprecedented move. Irrespective of what you may think of obscenity [197] regulation, if you identify as a progressive person you will readily accept that concern for gender equality is a much better reason to justify such regulation than any interest in protecting conservative public morality. However, ever since it was released, Butler has been criticised for its supposed ambiguity. It has been alleged that Butler only ostensibly purports, by upholding the criminalisation of obscenity, to protect society from harms related to gender inequality. The allegation is that in practice the Butler judgment allows restriction of pornographic material on the basis of traditional considerations of sexual propriety and conservative morality.8 This critique of Butler rests on the ambiguity of these expressions: undue exploitation of sex, which is the distinctive feature of obscene material according to s 163(8) of the Criminal Code; community standards, which is the test the Court said should be applied to determine whether a main characteristic of a given instance of pornographic material is the undue exploitation of sex;
See, eg, Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (1997) 756, and Brenda Cossman, Feminist Fashion or Morality in Drag? The Sexual Subtext of the Butler Decision in Brenda Cossman (ed), Bad Attitude/s on Trial (1997) 107.
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degrading and dehumanizing, which is one of the three categories in which, for the Court, obscene material may be deemed to fall into (the other two categories are sex coupled with violence and sexual representations involving children in their production);

antisocial conduct, which obscenity legislation, the Court said, aims at preventing; and societys proper functioning, which, according to the Court, obscenity jeopardises.9

The idea is that these concepts and standards, which were used in Butler, would not (and perhaps, according to this critique, could not possibly) be unequivocally and exclusively geared towards avoiding the harm of gender oppression. As such, and to the extent that they resonate with traditional rationales for the censorship of pornographic material, these concepts would lend themselves to justifying a selective targeting of sexual minorities explicit representations, particularly lesbian and gay pornographies. The judicial aftermath of the Butler decision may be viewed as confirming that lesbian and gay pornography has been made particularly vulnerable to censorious zeal as a result of that decision.10 However, here the view is taken that the expressions and tests upon which the Butler decision is built can appear equivocal and ambiguous only if de-contextualised from the wider framework of that decision. They are all contained in the first part of Butler, but that decisions ratio is not exhausted by this part. Only by ignoring the remainder of the judgment, could one reasonably maintain that the expressions contained in its first part legitimise pornography regulation on the ground of conservative morality concerns.

See Butler [1992] 1 SCR 452, 485. See Glad Day Bookshop v Deputy Minister of National Revenue, No 619/90, 1992 Ont CJ LEXIS 1296 (Ont Gen Div, 14 July 1992); Her Majesty the Queen v Scythes, No 537, 1993 OJ (QL) (Ont Ct Prov Div, 16 Jan 1993); Little Sisters Book and Art Emporium v Canada (Minister of Justice) (1996) 18 BCLR (3d) 241; 131 DLR (4th) 486 (British Columbia Supreme Court), affd (1998) 54 BCLR (3d) 306; 160 DLR (4th) 385 (British Columbia Court of Appeal).
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According to the view taken here, Butler (as we shall see) broke with the past, and meant to outlaw obscenity on the wholly new rationale of harm to women. From this perspective, it is misguiding and unhelpful to say that the reason why sexual minorities pornographies have fallen into the net of obscenity regulation after Butler is that this decision, despite its feminist rhetoric, is really about the restriction of pornography on the ground of conservative morality. Rather, the judicial decisions that have upheld governmental action targeting lesbian and gay pornography can be read in two ways. One way is to interpret them as misapplications of the Butler precedent. We would interpret them in this [198] way if we established that the instances of homosexual pornography which were targeted were harmless applying the Butler tests, and the judges were unable or unwilling to recognise this harmlessness. Alternatively, such decisions may be seen as constituting a restriction on lesbian and gay pornography which is justifiable on the basis of the harm to women rationale adopted in Butler. We would view these decisions in this manner if the representations at issue belonged to that class of homosexual pornography that may be regarded as harmful to women applying the Butler tests.11 Saying that restrictions on certain homosexual pornography are justifiable in the light of the harm to women rationale adopted in Butler is not to say that the regulation of pornography as justified on this basis is a good thing. (In fact, I do not believe it is,12 even though the Butler rationale for pornography regulation was surely an improvement if compared to the one based on conservative morality). It is merely to say that the regulation of lesbian and gay pornography can be justified on the basis of the Butler decision in a way that is true to the peculiar radical feminist premises of that decision. In other words, if one wants to claim that Butler allows the regulation of much lesbian and gay pornography, there is no need to argue that Butler is something

11 12

See n 62 and accompanying text. To fully explain why, I should engage in a detailed discussion taking issue with the feminist antipornography position on its merits, and exposing the rhetorical devices through which Butler constructs, rather than objectively describes, the truth about pornography as a type of expression which harms women. Such a discussion is beyond the scope of this article.

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other than what it appears to be (that is, a decision informed by a particular strand of feminist theory). However, in December 2000 the Supreme Court of Canada, whose composition has changed since the Butler decision in 1992, held precisely that. That is to say, the Courts decision in Little Sisters Book and Art Emporium v Canada (Minister of Justice)13 developed an argument to the effect that Butler is more than just what it plainly appears to be, namely, a decision informed by the world-view of antipornography feminism. The Court failed to clarify, however, what that more is. As a result, I will argue, Canadas obscenity law since Little Sisters has been no longer merely about the restriction of those instances of pornographic material be they heterosexual, gay, or lesbian which are harmful to women from the perspective of anti-pornography feminism. On the contrary, it has officially been about the restriction of pornographic material that can be deemed harmful in any of a potentially great variety of senses and from any of a potentially wide range of perspectives.

The Little Sisters saga The facts of Little Sisters concerned a gay-owned and lesbian-managed bookstore, called Little Sisters, located in Vancouver (British Columbia), catering for the homosexual community, and selling among other things sexually explicit material. Shipments sent from the United States to Little Sisters had, through the years, been subjected by Canada Customs to a degree and a type of scrutiny that evinced all but a persecutory attitude. Thus, for example, while certain shipments would never reach the gay and lesbian Vancouver bookshop, shipments containing the same material would pass the border undisturbed if directed to more mainstream retailers.14 At trial, the applicants contended that the customs provisions allowing officials at the border to intercept and stop the importation of material deemed to be obscene under s 163(8) of the Criminal Code15 unconstitutionally violated freedom of expression.

[2000] 2 SCR 1120; 193 DLR (4th) 193. See ibid 11389. 15 The provisions against which the constitutional challenge was launched were Customs Act, RSC 1985, c 1 (2nd Supp), ss 58, 71; Customs Tariff, RSC 1985, c 41 (2nd Supp), s 114; and Customs
14

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They also held that these provisions were an [199] unconstitutional infringement of equality, in that they discriminated on the ground of sexual orientation. In addition, or alternatively, the appellants argued that Canada Customs application and administration of the legislation, as distinct from the legislation itself, contravened the constitutional guarantees of equality and freedom of expression. The right to freedom of expression and the right to equality are protected respectively by ss 2(b) and 15(1) of the Charter.16 By relying on the precedent Butler, the Supreme Court of British Columbia found (and subsequently the Court of Appeal agreed) that the customs legislation was constitutional in itself. The Court conceded, however, that the legislation had been administered in a manner contrary to the Charter.17 This concession was important for the bookstore which had challenged the practices of Canada Customs. However, the trial judges and appellate Courts unwillingness to find the legislation itself, rather than merely its application by Canada Customs, unconstitutional prompted the bookstore to appeal the decision to the Supreme Court of Canada. The appellants sought a declaration that the customs officials systematic and prejudiced targeting of shipments to the Little Sisters bookstore was a necessary result of the inadequate and flawed character of the legislation. In other words, in their view the problems went beyond the failure of Canada Customs to apply in a constitutional and non-discriminatory manner (through departmental guidelines and customs officers exercise of their powers) a law which was otherwise unimpeachable in itself. They argued that the law was in itself unconstitutional and necessarily incapable of constitutional application.

Tariff, SC 1987, c 49, sch VII, code 9956(a) (now Customs Tariff, SC 1997, c 36, s 136(1) and Customs Tariff, SC 1997, sch, tariff item 9899.00.00). 16 The equality guarantee reads: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Charter, above n 2, s 15(1). The Charter constitutional guarantee of freedom of expression provides protection for everybodys freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication: s 2(b).

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The appellants arguments were as follows. First, they contended that the customs legislation impermissibly infringed freedom of expression by allowing customs officials to exercise, in practice, unchecked administrative discretion while discharging their duties of interception and seizure of obscene material. Furthermore, they argued that the victims of the resulting abuses were provided with merely nominal, impractical and burdensome safeguards. Secondly, the appellants argued that the legislation was an unjustifiable breach specifically of the right to freedom of expression of lesbians and gay men, hence of their right to equality. In particular, they argued that homosexual pornography, because of the specificities of its context, required a different standard of tolerance from that adopted in Butler and incorporated in the customs provisions by their reference to s 163(8) of the Criminal Code. In this view, failure to provide such a standard doomed the customs obscenity legislation to unconstitutionality at least in so far as it applied to lesbian and gay pornography. This was believed to be so especially in connection with the failure to set out an adequate and workable machinery for officials to exercise their powers and for importers to challenge the officials actions. I shall summarise in the next section the Courts response to the applicants arguments. By far the most interesting part of the decision is the one that dealt with the test for obscenity set out in Butler, and that confirmed its applicability to gay and lesbian pornography. This part of the decisions constituted the basis for the analysis of the equality claim (s 15(1) of the Charter). I will deal with the part of the Courts judgment devoted to this issue in the section preceding the conclusions. [200] The Supreme Courts Decision In his judgment Binnie J, for the majority of the Court, recognised that the rights to freedom of expression and equality were unconstitutionally infringed. However, the Court denied that s 163(8), as interpreted in Butler, was an inadequate standard to identify obscene material in the context of homosexual pornography. It also denied that the unconstitutional infringement followed from the legislation itself (with one
Little Sisters Book and Art Emporium v Canada (Minister of Justice) (1996) 18 BCLR (3d) 241; 131 DLR (4th) 486 (British Columbia Supreme Court), affd (1998) 54 BCLR (3d) 306; 160 DLR (4th) 385 (British Columbia Court of Appeal).
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exception). Rather the Court held that the unconstitutional infringement was caused by the way in which the legislation had been practically applied by the customs authorities. That is to say, customs officers failed to administer the legislation fairly and non-arbitrarily, thus singling out lesbians and gay men for unequal treatment; and the relevant department failed to implement appropriately detailed guidelines and procedural rules to ensure that customs officers acted in a constitutional manner. Here follows a more detailed description of the Courts arguments. In his judgment Binnie J noticed that both the right to equality and the right to freedom of expression had been infringed. But was that infringement constitutionally justifiable, in the light of s 1 of the Charter? As already pointed out, this section reads:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The judge clarified that there is no need to engage the analysis under s 1, about whether or not the infringement on a Charter right can be justified, when it is established that the source of the infringement is to be located exclusively in the way in which the legislation is practically applied by the relevant authorities. Because in these cases the legislation itself, as distinct from its administration, is not the source of the infringement, the infringement is by definition not prescribed by law, and is unjustifiable for that very reason. 18 When, on the contrary, the infringement is inherent in the legislative provisions, it will be necessary to examine the issue of whether that infringement is justified in a free and democratic society. In Little Sisters the problem arose precisely of which was the source of the free speech and equality infringements. Was it only the way in which the legislation was applied, or was it the legislation itself? Could not the law be considered just as responsible for the infringements as the way in which the legislation had been practically applied? After all, was it not as a result of the laws failure to prescribe the way in which it should have been administered by Customs authorities, that these

18

See Little Sisters [2000] 2 SCR 1120, 11967.

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authorities found themselves wielding the discretion that directly occasioned the infringements? The Court answered the last two questions in the negative, drawing a distinction between the substantive standard that must guide governmental actions impacting on Charter rights and the procedural aspects of the exercise of that action. The substantive standard, the Court held, must be provided by law, but the procedural aspects of the governmental action can well be a matter of regulation, ministerial directive or departmental practice. Thus it would appear that an infringement upon constitutional rights will be blamed on the legislation, rather than the implementation/administration of the legislation itself: where the law fails to provide any substantive standard; where the law provides a substantive standard which necessarily occasions the infringement; or where the law, in the event that it directly regulates all or certain procedural aspects, imposes a rule which necessarily occasions the infringement. On the contrary, a statute that provides a valid substantive standard cannot be deemed responsible for the infringement merely because it fails directly to regulate any or all of the procedural aspects of the [201] exercise of the action producing the infringement. In such a case the responsibility will be of the acting governmental authorities which failed appropriately to apply the substantive standard, and/or to put in place appropriate procedural safeguards.19 This will also be the case in which, as clarified above, a s 1 analysis of whether or not the infringement is justified in a free and democratic society will not be required, and the infringement will be deemed always unjustifiable. Applying this line of argument to the case at issue, and relying on its assessment that s 163(8) of the Criminal Code does constitute an appropriate substantive standard to
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See ibid 116772, 118996.

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identify legitimately proscribable gay and lesbian obscenity,20 the Court affirmed the following arguments. 1. The equality right of the appellants protected by s 15(1) of the Charter was unconstitutionally violated on the ground of sexual orientation by the arbitrary administration/implementation of the customs legislation. (That is, for example, by the flawed way in which customs officers used their powers, and by the existence of discriminatory departmental guidelines.)
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The

discriminatory treatment, however, was not sanctioned by the legislative scheme itself, which, in this respect, was constitutional and capable of constitutional administration. This was because the definition of obscenity incorporated in the customs legislation by reference to s 163(8) of the Criminal Code was provided by law and set a substantive standard that was not itself discriminatory on the ground of sexual orientation.22 2. The expressive rights of the appellants were impermissibly infringed both because of a failure at the level of implementation/administration,23 and by the legislation itself. However, the legislation was responsible for an unconstitutional free speech infringement only to the very limited extent that it provided for a reverse onus. In particular, in those proceedings instituted to challenge the determinations of customs officials, the onus of proving that certain material is obscene must lie on the government, consistent with the general rule that the State cannot limit a Charter right if it cannot justify the limitation imposed. Hence, the relevant provision of the customs legislation should not be interpreted as placing the onus of disproving obscenity on the importer.24 3. The infringement on expressive rights that the legislation directly (that is, independent of its wrong implementation/administration) produced for the very fact of setting up a mechanism of border controls and related administrative and judicial review proceedings was demonstrably justified in a free and democratic society. This was because: (a) the infringement was
20 21

See the next part in the text. See Little Sisters [2000] 2 SCR 1120, 1137, 12023. 22 See ibid 11829. 23 See ibid 11717.

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prescribed by law; (b) the infringement was motivated by a compelling state interest (that is, keeping Canada free from harmful material), to which the border controls system was rationally connected; and (c) the infringement, where properly applied, was minimally intrusive on the right to freedom of expression, and yielded beneficial effects outweighing the deleterious ones.25 [202] The Court rejected as well two recurrent motifs in liberal free speech/obscenity discourse. First, it did not accept that an exemption should be carved out in obscenity regulation for the written word.26 Secondly, it denied that a system of prior restraints as is the Canadian border controls system, which prevents certain speech from entering that countrys free market of ideas at all is, by virtue of its very nature, a particularly troublesome limit on freedom of expression. In this context the Court stated:
The only expressive material that Parliament has authorized Customs to prohibit as obscene is material that is, by definition, the subject of criminal penalties The concern with prior restraint operates in such circumstances, if at all, with much reduced importance.
27

This conclusion of the Courts is, however, puzzling. The Court did not take issue with the general soundness of the doctrine of prior restraint, but only with its application to the case of obscene material, because, it said, such material is already proscribed by the criminal law, that is, a means of subsequent restraint. But this begs the original question posed by the doctrine of prior restraint, which is precisely concerned with the shortcomings of a system of prior restraint, to which the alternative of one of subsequent restraint is said to be preferable.
See ibid 117181. The reverse onus provision was Customs Act, RSC 1985, c 1 (2nd Supp), s 152(3). 25 See Little Sisters [2000] 2 SCR 1120, 1198201. In other words, the legislation was found to withstand scrutiny under the so-called Oakes test, which is applied to check whether an infringement to a Charter right can be justified under s 1 of the Charter (see above n 3). The dissenting opinion written by Jacobucci J disagreed on the freedom of expression issue. It held that the customs legislation instituted a system of prior restraint without providing the procedural safeguards necessary to ensure that the relevant provisions were applied constitutionally. As a result the availability of non-obscene material was routinely restricted. Because of the failure to provide appropriate procedural safeguards, the customs legislation system was found, by the dissenting Justices, to be far from minimally intrusive on the right to freedom of expression. See Little Sisters [2000] 2 SCR 1120, 1224, 123150. 26 See Little Sisters [2000] 2 SCR 1120, 11645. 27 Ibid 1170.
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In short, the Court found that the only problem that lay with the border control legislation affecting pornographic material was that it did not require Canada Customs to prove that the material which it had intercepted and seized was obscene, and rather forced an interested party to show that it was not. Any other aspect of the legislative regime was found constitutional. However, the application of the legislation (in terms of departmental regulation and practice, and customs officers exercise of their powers) was found unconstitutional both on equality and free speech grounds. One of the cornerstones of the Courts finding that the legislation in itself was largely constitutional rest on its claiming that the substantive standard to which the customs legislation referred that is the Butler standard was applicable to lesbian and gay pornography. The next part will concentrate on examining this claim.

Little Sisters and the Butler standard Obscenity and harm In this section I will illustrate how the decision in Little Sisters is decked with highsounding, but in practice very little helpful, statements. The Court uncritically reiterated the simple opposition morality/harm, holding that Canadian obscenity law aims at avoiding the latter and is not concerned with the former, but seems deliberately to have avoided clarifying what the harms are that, in its view, the dissemination of obscene material brings about. Although no constitutional questions on s 163 of the Criminal Code were stated, a ground of powerful attack to the customs legislation was precisely its reference to such provision for the purpose of determining what counted as obscene material under the border controls regime. If successful, an attack on the s 163(8) definition of obscenity and its judicial interpretation (either in general terms or in so far as it applied to gay and lesbian pornography) would have undermined the whole edifice of the customs legislation at its very base. In its decision, the Court said that no constitutional question about s 163 being stated, it could not proceed towards the wide-ranging reconsideration of Butler sought by the appellants and some of the interveners,28 who had questioned the wisdom of that

28

Ibid 1158.

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decision even beyond its applicability to the context of the importation of gay and lesbian pornography. Binnie J, for the majority, specified that such [203] preclusion to re-consider Butler operated even if the Court were to conclude that such a reconsideration is either necessary or desirable. 29 However, a reading of the discussion of the Butler question engaged in by the Little Sisters Court merely for the limited purpose of the Butler standards applicability to gay and lesbian pornography in the context of the customs legislation seems to yield precisely the impression that Butler was substantially reconsidered in Little Sisters. Given that Butler had been criticised, as we have seen, because of its supposed ambiguity, Little Sisters provided precisely an occasion for the Supreme Court of Canada to finally dispel any lingering doubt about the Canadian obscenity laws system. The Court, indeed, confirmed that Butler discredited any system of pornography regulation undertaken on a basis other than that of preventing harm.30 However, any sense that this statement is a useful contribution to the clarity of the obscenity regulation regime in Canada is illusory. The Little Sisters decision, rather, seems to have detracted from such clarity: the language and concepts used by Binnie J have made the rationale informing Canadian obscenity legislation altogether murky. Throughout Little Sisters, Binnie Js language seems to have faithfully reproduced precisely the same ambiguous expressions, listed above, at the heart of the controversy about Butlers meaning. Consider, for example, the following passage: It may serve repeating that the national community standard relates to harm that rises to the level of being incompatible with the proper functioning of Canadian society.31 And: Not all sexually explicit erotica depicting adults engaged in conduct which is considered to be degrading or dehumanizing is obscene. The material must also create a substantial risk of harm which exceeds the communitys tolerance.32 I have pointed out before that in Butler the meaning of these expressions, once read in the light of the other parts of that decision, was not equivocal at all. Thus, the risk of harm in Butler clearly meant risk of gender inequality and violence against women.
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Ibid. See ibid 1162. 31 Ibid (emphasis added).

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Similarly, the proper functioning of Canadian society meant its functioning in a way that is not premised on the subjugation of women. And so on. What is troubling is that whilst the Court in Little Sisters heavily relied on the linguistic expressions just mentioned, it did not include in its judgment the clarifying elements running throughout its 1992 predecessor. In particular, to the extent that Little Sisters did not clearly identify the harm that the legal regulation of obscenity aims at avoiding, it provides few or no clues as to the meaning with which the expressions in question should be filled. Butler was replete with references to the actual harm that pornography regulation should be aimed at preventing: harm to women. This is illustrated, for example, in this passage from the majoritys opinion:
The harm was described in the Report on Pornography by the Standing Committee on Justice and Legal Affairs (MacGuigan Report) (1978), at p 18:4: The clear and unquestionable danger of this type of material is that it reinforces some unhealthy tendencies in Canadian society. The effect of this type of material is to reinforce malefemale stereotypes to the detriment of both sexes. It attempts to make degradation, humiliation, victimization, and violence in human relationships appear normal and acceptable. A society which holds that egalitarianism, nonviolence, consensualism, and mutuality are basic to any human interaction, whether sexual or other, is clearly justified in controlling and prohibiting any medium of depiction, description or advocacy which violates these principles.
33

[204] In a similar vein:


[I]f true equality between male and female persons is to be achieved, we cannot ignore the threat to equality resulting from exposure to audiences of certain types of violent and degrading material.
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32 33

Ibid (emphasis added). Butler [1992] 1 SCR 452, 4934. 34 Ibid 4957.

Zanghellini, Canadas Obscenity Law After Little Sisters The message of obscenity is analogous to that of hate propaganda [O]bscenity wields the power to wreak social damage in that a significant portion of the population is humiliated by its gross misrepresentations.
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[T]he criminal sanction demonstrates disapproval of the dissemination of materials which potentially victimize women and restricts the negative influence which such materials have on attitudes and behaviour.
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[T]he objective is the avoidance of harm caused by the degradation many women feel as victims of the message of obscenity, and of the negative impact exposure to such material has on perceptions and attitudes towards women.
37

The Little Sisters decision is not nearly as specific in clarifying what is the harm to be avoided through the enforcement of obscenity legislation. The most the Little Sisters Court did was quote two passages from Butler.38 But, to begin with, the Butler Court in these passages did not identify the harm brought about by obscene material in terms as specific and unambiguous as those used in the passages of Butler that I have just reported. Further, Binnie J in Little Sisters did not simply fail to mention that the harm that obscenity regulation aims to prevent is gender oppression; he positively compounded the uncertainty and confusion in another way. That is, after underlining that violence against women was only one of several concerns that led to the formulation of the Butler harm-based test, 39 he omitted and, it is tempting to suggest, carefully
Ibid 501. Ibid 504. 37 Ibid 507. 38 See Little Sisters [2000] 2 SCR 1120, 1157, 11667. These passages, quoted from Butler, seem to identify a type of harm somewhat wider than gender oppression. However, I would suggest that this impression can coherently obtain only if one ignores the other points of Butler where the court better clarified the way in which obscenity can be harmful. Those points assist the interpreter making sense of those in which Butler deals with the issue of harm in a more ambiguous way, which are precisely those that the Little Sisters court chose to report. Thus, for example, in the passage of Butler quoted at para 49 of the Little Sisters decision, the Butler court affirmed that obscenity falls short of the community standards test not because it offends against morals but because it is perceived by public opinion to be harmful to society, particularly to women: Butler [1992] 1 SCR 452, 479. In my view, this should not be taken to mean that there is an independent societal harm that, from the perspective informing Butler, obscenity produces in addition to gender oppression. Rather, it should more plausibly be understood as highlighting how harm to women not only impacts on individual women and women at large, but is also generally detrimental to society as a whole. 39 Little Sisters [2000] 2 SCR 1120, 1164.
36 35

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avoided specifying what these other concerns were. As I will suggest in the conclusions, this may have been a deliberate move one, in particular, dictated by a feeling that Butlers harm to women rationale was somewhat too rigid and constraining as a ground for the legal regulation of pornography, and particularly of lesbian and gay pornography. One part of the decision seems even open to the construction that, so long as harm is identified by community standards, even offence to sensitivities could amount to harm for the purposes of justifying [205] obscenity regulation. Apparently with a view to proving the correctness of the choice to apply community standards rather than some more nuanced standard in order to determine whether a certain instance of homosexual pornography is obscene, (that is, harmful) the Court said:
The fact is they [the appellants] operate a bookstore in a very public place open to anyone who happens by, including potentially outraged individuals of the local community who might wish to have the bookstore closed down altogether. If special standards are to apply, whose special standard is it to be?
40

The Court here did not say that offence to conservative sensitivities cannot qualify as harm under obscenity legislation because of its incompatibility with, or irrelevance to, the very rationale (that is, harm to women) underlying this legislation. Its claim seems to have been much more limited. This claim was that reliance on community standards should prevent a specific result from taking place, namely that each and every instance of gay and lesbian sexually explicit expression be considered obscene. The idea, seemingly, was that if the most sensitive conservative reaction to homosexual pornography were the sole basis on which to decide what explicit representations were obscene, no same-sex erotica would pass the obscenity test. But because conservative sensitivities are, so to speak, diluted in the blend of the communitys standards, some vanilla type of homosexual pornography will indeed be allowed to circulate. With this suggestion, the Court confirmed at the very least that offence to sensitivities has still a role to play in pornography regulation.

40

Ibid 1161.

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But if that is the case, the distinction between the harm-based approach and the morality-centred one becomes very blurred indeed, and, really, nothing more than an exercise in rhetoric. Preventing offence to sensitivities is one of the typical preoccupations of obscenity laws concerned with the prurient and immoral, rather than discriminatory and subordinating, character of explicit material. Note that the distinction between the morality-based and the harm-based approach to obscenity legislation had a meaning, in Butler, only to the extent that the category harm was filled with a certain meaning and morality was intended to point to a certain type of morality. It is clear, in fact, that anything can constitute harm under an appropriate theoretical framework, and that a certain conception of morality must underlie any identification of particular kinds of harms. Sopinka J in Butler had relied on the inaccurate and oversimplified opposition harm/morality, affirming that Canadas obscenity law was about the prevention of harm rather than about the enforcement of morals.41 However, the decision also made it clear that by harm the Court meant gender inequality and violence against women which are harms from the point of view of an egalitarian/feminist morality. Conversely, morality, once opposed to harm intended in this sense, clearly stood for conservative morality which, as we have seen, in turn identifies its own peculiar obscenity-related harms, such as the corruption of youth, or the harm of offended sensitivities. Moreover, after inaccurately contrasting simple harm to an unqualified morality, the Court in Butler had cursorily referred to the fact that it is actually our subscribing to a certain kind of morality that makes us want to regulate pornography in order to prevent the realisation of certain kinds of harms.42 One could (or could not) have taken issue with Butler for its choice to privilege, in the field of sexual expression, a certain type of morality (namely, egalitarianism), and to allow so serious a sanction as censorship to apply to perceived violations of that particular moral code. But at least Butler had the virtue of a relative coherence (and perhaps that of daring to take a clear-cut stand on a considerably contentious issue). The Little Sisters decision cannot boast as much.
41

See Butler [1992] 1 SCR 452, 479, 493.

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[206] The community standards test The Court also failed convincingly to address all the other most problematic and controversial parts of the obscenity standard set out in Butler, whose application to gay and lesbian pornography may appear particularly dubious. As we have seen, the test that is used to decide what constitutes the undue exploitation of sex is, according to Butler, a community standards test.43 Critics of Butler highlighted how this test is substantially at odds with the central view made clear in Butler itself: that the harms pornography regulation is directed at avoiding relate to gender inequality. Dominant ideology, which would be reflected in community standards, is indeed likely to be sexist and prudish. Adopting the standard of the degree of toleration of obscenity-related harms shown by the community as a whole would, therefore, frustrate the laws aim to restrict pornography on the ground of egalitarian considerations, and legitimise restrictions on obscenity based on conservative morality concerns. Butler, in my view, contained two arguments in response to this objection, although one must be derived implicitly, and the other is only roughly sketched out by Sopinka J (and not expressly for the specific purpose of responding to an anticipated objection to the adoption of the community standards test). The first argument is rather straightforward, and simply reverses the perspective of the critique levelled at the community standards test. According to such test [t]he courts must determine as best they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. 44 It seems that critics of the community standards test assume that the adoption of the test will affect the nature of the harm by shifting the attention of the adjudicator from gender inequality to threat to traditional values. But the harm to be avoided is clearly identified throughout the Butler decision as the very specific harm of gender inequality/male violence. Thus, one can hold that Butler, rightly interpreted, requires the nature of this clearly defined harm to affect the range of community
42 43

See ibid 4956. See ibid 4845. 44 Ibid 485.

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standards relevant to the task of the adjudicator, rather than vice-versa. In other words, the judge will have to consider only those community standards that are informed by an egalitarian morality, and that are compatible with the identification of the harm of gender oppression. The second argument stems from Sopinka Js statement that the Charter forecloses a breach on freedom of expression based on the adoption of a certain standard of public and sexual morality, solely because it reflects the conventions of a given community.
45

In this sense moral disapprobation would be constitutionally

acceptable as a ground for speech limitations only where grounded in, or at least not undermining, Charter values.46 It would seem to follow that a court, in deciding whether some material is obscene or not, should apply the community standards test so as to concentrate only on the communitys moral conceptions about the undue exploitation of sex that promote (or do not undermine) Charter values. But which moral conceptions meet this requirement? The equality clause in the Charter supports the adoption of an egalitarian morality concerned with the harm of gender inequality. On the contrary, conservative notions of morality not only do not enjoy Charter support, but would also seem to have the potential for undermining Charter values. Conservative sexual morality, being inseparable from notions of obligatory procreative sex, can well be conceived precisely as contributing to gender oppression and therefore as undermining the value of equality. Grounding obscenity legislation in conservative morality could thus be seen as undermining the Charter value of equality in so far as it would be an obstacle to the dissemination of pornography disrupting such sexist ideologies as compulsory procreative sex and compulsory heterosexuality. In this sense, it would be the Charter itself that mandates a selective consideration of community standards, so that those standards inimical to gender equality would be left out of consideration. [207] For the purposes of the customs legislation, obscenity is identified, as we know, by relying on the same criteria discussed in Butler, including the community standards test. Since the biased, homophobic application of the customs legislation by
45

Ibid 492.

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customs officers was at issue in Little Sisters, it was very much to the point to attack the community standards test by taking issue with its believed potential for conservative manipulations. Indeed such an attack occupied a crucial position in the arguments of the appellants and interveners.47 Therefore one would have expected a serious defence of the test on the part of a court unwilling to recognise the appellants claims. Binnie J, however, pursued neither of the two arguments outlined above in order to defend the community standards test. Instead, the Court simply declared that the community standards test was minority-friendly, without giving a plausible explanation of why that should be the case. The Court stated that the adoption of the community standards test posed no risk of, and actually was a safeguard against, arbitrary censorship of sexual minorities explicit expression. The reason put forward to support this view was that the standards of the community incorporate the rights to freedom of expression and equality.48 But it is clearly tautological to say, without more, that consenting to restricting pornography only on the ground of what community standards incorporating free speech dictate is enough to protect us from unjustified limitations on freedom of expression. The fact is, freedom of expression is in turn recognised only so long as the speech is not deemed obscene by community standards! Nor does it make more sense to say that, since the community standards include recognition of homosexuals right to equality, this guarantees that lesbian and gay pornography will not undergo, by virtue of involving same-sex partners, special negative treatment. Subscribing to the view that homosexuals shouldnt be discriminated against because of what happens in the privacy of their bedrooms does not carry with it approval of same-sex intercourse. Homosexuals right to equality, in liberal terms, is perfectly consistent with people thinking homosexual sex degrading or dysfunctional. It seems a fallacy to assume otherwise in order to discredit the

46 47

Ibid 493. See Little Sisters [2000] 2 SCR 1120, 115960. 48 See ibid 11612.

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critique of the community standards test as inherently discriminatory against lesbians and gay men.49 The Courts response to the inadequacy of the community standards test seems to rest on an uncritical and unrealistic equation between the communitys convictions and progressive constitutional principles. But if such an equation were plausible, it is hard to understand why Canada should need a Charter and a Supreme Court with the power of judicial review in the first place. There is some safety in numbers, and a national constituency that is made up of many different minorities is a guarantee of tolerance for minority expression,50 the Court stated. One cannot escape the impression that the Court made a counter-intuitive statement without bothering to prove it. In the same paragraph the Court averred that [t]he protective character of the national standard requirement is readily apparent from the fact that a persons constitutionally protected space does not shrink by virtue of his or her geographical location or participation in a certain context or community. 51 This looks like a somewhat surprising conclusion. It seems to be the reversal of an argument cherished by libertarians, which runs as follows. As community standards tests are not sensitive to the geographic distribution of societal attitudes, their adoption allows the proscription of speech in the most liberal and tolerant areas of the country by relying on community standards that reflect the more rigorous, on average, moralistic outlook reigning in the country as a whole. It may be thought that the Courts choice [208] to read this circumstance not as a loss of liberty, but as proof of the minority-friendly and protective character of the community standards test evinces an unusual capacity for positive thinking.

The degrading and dehumanizing test The Courts discussion of the degrading and dehumanizing test raises comparable difficulties. Under Butler, pornography that is degrading and dehumanizing is obscene

In fact not even the lack of criminalization for homosexual intercourse is evidence of the communitys approval of gay and lesbian sex. In Canada, sadomasochistic consensual heterosexual sex not involving physical harm is not criminal either, but pornography depicting such intercourse is no doubt proscribed, and precisely on the ground that it exceeds the communitys tolerance. 50 Little Sisters [2000] 2 SCR 1120, 1161. 51 Ibid.

49

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where the risk of (gender inequality-related) harm is substantial.52 In Little Sisters the appellants adduced that the expression degrading and dehumanizing lent itself to homophobic manipulations. To deny this, the Court once again focused on the rhetoric of abstract harm talk. However, it seems carefully to have avoided the substantive issue of the harm in the light of which we should interpret the expression degrading and dehumanizing:
The appellants argue that the degrading or dehumanizing language in Butler is highly subjective and encouraged Customs, for example, to prohibit depictions of anal intercourse long after the Department of Justice advised Customs to the contrary. This argument seems to ignore that the phrase degrading or dehumanizing in Butler is qualified immediately by the words if the risk of harm is substantial (p 485) (emphasis added). This makes it clear that not all sexually explicit erotica depicting adults engaged in conduct which is considered to be degrading or dehumanizing is obscene. The material must also create a substantial risk of harm which exceeds the communitys tolerance.
53

The Court went on to say:


The potential of harm and a same-sex depiction are not necessarily mutually exclusive. Portrayal of a dominatrix engaged in the non-violent degradation of an ostensibly willing sex slave is no less dehumanizing if the victim happens to be of the same sex, and no less (and no more) harmful in its reassurance to the viewer that the victim finds such conduct both normal and pleasurable.
54

However, in this latter passage the Court misinterpreted the argument on the basis of which the appellants were criticising the degrading and dehumanizing test. The appellants were not questioning the abstract possibility of meaningfully and appropriately applying the Butler harm rationale to gay and lesbian pornography. They were making a different and further point: even admitting that the Butler standard was capable of rightful application to homosexual pornography in the abstract (a hypothesis with which the applicants took issue elsewhere), in practice the

52 53

See Butler [1992] 1 SCR 452, 485. Little Sisters [2000] 2 SCR 1120, 11623. 54 Ibid.

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utilisation of the degrading and dehumanizing test ended up, by virtue of its vague wording, legitimising restriction of harmless instances of homosexual explicit material. The experience of the Little Sisters bookstore did suggest that the practical application of the degrading and dehumanizing test to homosexual pornography lent itself to applications which left much to be desired. A court unwilling to indulge the applicants contentions would have felt on safer ground by shifting the attention to the issue of whether gay and lesbian pornography was capable of being degrading and dehumanizing in the abstract. Perhaps that is why the Supreme Court got confused about the two issues.55 [209] The harmfulness of lesbian and gay pornography A few paragraphs later the Court considered again the question of the abstract applicability of the harm-based rationale to lesbian and gay explicit expression. This question was indeed brought to the attention of the Court as well, and was clearly articulated by the interveners EGALE Canada Inc and Women Legal Education and Action Fund (LEAF). These interveners, taking the correct view that harm in Butler stood for gender oppression, pointed out that the absence of cross-gender relationships in gay and lesbian pornography should render homosexuals sexual representations harmless. The Court, after reporting LEAFs position, referred to the intervener Equality Now, according to which, the Court said, gay and lesbian individuals have as much right as their heterosexual counterparts to be protected from depictions of sex with violence or sexual conduct that is dehumanizing or degrading.56 The Court then criticised LEAFs position and appeared to endorse that of Equality Now by affirming that the harm rationale is not gender-specific, and mentioning that other (unspecified)

55

Thus the Court did not try to explain whether customs officials misjudged assessment of anal sex as a degrading and dehumanizing practice was a foreseeable result of an imperfectly worded test (and, if not, what was its cause). Instead, it found itself suddenly talking about a lesbian scenario that might be thought to fall pretty squarely into the Butler womens oppression rationale, thanks to the sadomasochist element conjured up by the insiders jargon used by the Court. Although the Court here provided an example that, arguably, could be considered obscene under the harm to women principle set out in Butler, it is notable that it did not take the trouble to clarify the meaning of degrading and dehumanizing in the light of an unambiguously identified harm. 56 Little Sisters [2000] 2 SCR 1120, 1164.

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concerns besides violence against women underlay the adoption of the Butler harmbased test.57 By expounding the view of Equality Now in the way Binnie J chose to put it, and by implying that the Court shared it, however, the Court again did little in terms of clarification. A careful reading of the passage just reported shows its circular character. The Court was here supposed to explain whether the harm-based approach to pornography regulation made sense in the context of same-sex erotica. The Court appears to have believed that it did because, as Equality Now highlighted, homosexuals have as much right as their heterosexual counterparts to be protected from depictions of sex with violence or sexual conduct that is dehumanizing or degrading in a way that can cause harm that exceeds community standards of tolerance.58 Now, consider that depictions of sex with violence and sexual conduct that is degrading and dehumanizing are two of the three descriptive categories into which obscene material can, according to Sopinka J in Butler, be subdivided (the third being sexual representations involving children in their production).59 But then the Little Sisters Court here failed to say much about the harmfulness of homosexual pornography, simply reaffirming that lesbian and gay pornography must be proscribable so that lesbians and gay men are protected from obscenity.

Concluding remarks Part of the difficulties which the Justices deciding Little Sisters might have encountered, and that led to the less than exemplary character of the judgment, might have to do with the politically unpopular nature of the philosophical theory that had inspired the turn taken by obscenity law in Butler. Butler was clearly a radical feminist decision, in the sense that it was informed by the particular world-view of radical or anti-pornography feminism. It is within this world-view that the basic contentions of the decision about the harmfulness of pornography as a technique of sexist discrimination make sense. (Arguably, the radical feminist ideas contained in the brief that LEAF submitted to the Supreme Court adjudicating Butler constituted, largely, the source of inspiration for the Courts adoption of the harm to women
57 58

See ibid. Ibid. 59 See Butler [1992] 1 SCR 452, 485.

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rationale in that decision.) 60 The Butler Court, however, while obviously drawing extensively on [210] anti-pornography feminism at the time of deciding Butler, never mentioned that the rationale informing the decision was derivative, and that its original source was a certain strand of feminism. A number of reasons can be adduced to account for this choice: for example, the laws unwillingness, as a social discourse, to authorise competing and alternative knowledges especially if these knowledges have an ambivalent and difficult relation with the law itself. Such ambivalent relationship with the law may be precisely a mark of radical feminism: whilst strategically interested in engaging the legal system in order to further their agenda, radical feminists are also critical of the law, which they tend to see as a reflection of patriarchal rule. More simply, it is realistic to think that the Justices failed to disclose the radical feminist underpinnings of Butler because they didnt feel comfortable with explicitly admitting to have subscribed to a theoretical and political position that did not enjoy widespread political credit and support in society at large. The debate and controversy following Butler, however, made it clear, at least in some circles and certainly in much of the politically aware section of the lesbian and gay community, that this decision was inspired by radical feminism. However, some doubts remained that also other elements informed the decision, and this circumstance accounted for Butlers ambiguity in the mind of some of its critics. Little Sisters might
During the Butler trial, the Womens Legal Education and Action Fund (LEAF) submitted a brief to the Supreme Court of Canada, about the connection between pornography and womens oppression and discrimination. This was clearly informed by an orthodox radical feminist perspective. Catharine MacKinnon herself has participated directly in LEAFs litigation-related activities: see Lise Gotell, Litigating Feminist Truth: An Anti-Foundationalist Critique 4 (1995) Social & Legal Studies 99, 103. In fact Catharine Mackinnon and Kathleen Mahoney, leaders in the anti-pornography feminist movement, were two of the three authors of Leafs factum in Butler: see Karen Busby, Leaf and Pornography: Litigating on Equality and Sexual Representations 9 (1994) Canadian Journal of Law & Society 165, 192. The adoption of an orthodox anti-pornography perspective by Leaf in Butler was the object of much critique, which took place, among others, also within feminist circles themselves. Thus it has been suggested that after Butler Leaf was battered for nine years . . . by those quick to label the group homophobic. Christopher N Kendall, Little Sisters, Leaf and the Sexism that Is Gay Male Pornography: A Gay Male Defends Equality Now, online: <www.nostatusquo.com/ACLU/Porn/Kendall.html> (last accessed: 29 May 2002). This prompted Leaf to refine some would say radically alter its position on pornography in Little Sisters, as shown by the factum submitted to the Supreme Court in this case, which was the result of extensive consultation with lesbian women throughout the country. See generally Factum of the Womens Legal Education and Action, Little Sisters Book and Art Emporium v Minister of Justice, [2000] 2
60

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indeed have been awaited by some as the one occasion for the Court formally to disclose the theoretical underpinnings of Canadian obscenity legislation. Butler was (wrongly, in my view) attacked in Little Sisters also on the ground of its being only ambiguously, or merely ostensibly geared towards combating gender inequality. The next logical step for the Court to take was explicitly to recognise the anti-pornography feminist framework of Butler. However, the Justices failed to do this. Aside from the already mentioned reluctance of the law to give credit to competing discourses and/or to risk losing its own credit by overtly endorsing controversial intellectual positions, there may be another explanation that accounts for the volte-face accomplished in Little Sisters. It may not be implausible to suggest that the law was interested, when Butler was issued, in capitalising on the regulative potential of anti-pornography feminism, even if its deep reasons for wanting such regulation were independent of, or wider than, the genderequality project of radical feminism. If the latter is the case, then the retreat from Butler that Little Sisters seems to have performed might be owed to a certain perception on the part of the Court. The Court might have believed that the radical feminist philosophy informing Butler (and its rationale of harm to women) had exhausted its usefulness as a regulatory tool, and did not yield a convincing argument to justify the regulation of gay and lesbian pornography. The Court in fact seems to have been convinced by the argument advanced by the appellants and interveners in Little Sisters that the absence of opposite-sex relations in homosexual pornography made the harm to women rationale inapplicable to this type of explicit expression. Binnie J considered the argument and did not contradict it, but only in order to conclude (against the plain meaning of Butler) [211] that gender oppression was only one of the harms that obscenity legislation was meant to address.61 In other words, in order to reach the scope of regulation desired by the law, a greater degree of flexibility needed to be injected into the Butler tests and rationale. Leaving unidentified the harms that obscenity regulation aims at preventing allows a potentially unlimited adaptability of such crucial expressions as undue exploitation of
SCR 1120 (No 26858) (available online at University of Manitoba, Factum of the Womens Legal Education and Action Fund (LEAF) <www.umanitoba.ca/Law/Courses/Busby/Gender/factum.html>). 61 See Little Sisters [2000] 2 SCR 1120, 1164.

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sex, antisocial conduct, degrading and dehumanizing and so on. Gay and lesbian pornography, no less than heterosexual one, can thus safely fall into the net of pornography regulation. As a matter of fact, the Court might have relatively easily justified regulation of at least male homosexual pornography on the basis of the rationale of harm to women. In the view of anti-pornography feminists, the symbolic meaning of gay male explicit representations eroticising dominance and submission makes these representations harmful to women. This is because the submissive participant is often in various ways feminised. 62 Lesbian representations of butch-femme sexual relationships would, according to the most orthodox radical feminist interpretations, be similarly harmful and in need of regulation. Even if the Court was able to see this, it is arguable that accepting these justifications on the gender inequality-related harmfulness of gay and lesbian pornography would have gone too much down the road of explicitly recognising that the judicial discourse on obscenity reproduced that of radical feminism. Thus, in Little Sisters another reason may have compounded the Courts reluctance explicitly and officially to endorse the radical feminist philosophy which had nevertheless silently informed Butler. After the debate sparkled by Butler in the lesbian and gay community particularly, perhaps, the academic community the Court could not simply state that homosexual pornography harmed women. Any such claim would have needed an open defence (more so than the statement made in Butler that heterosexual pornography harmed women) and an explicit endorsement of radical feminism. Such an endorsement would have had to be backed up by reasons justifying the adoption of a radical feminist perspective on lesbian and gay pornography rather than one reflecting the variety of views held by lesbians and gay men on the subject. This would have been a daunting task. In other words, one way to ensure that lesbian and gay pornography could not escape legal regulation was to apply Butler and its radical feminist philosophy in a rigorous
62

See, eg, Cristopher N Kendall, Real Dominant Real Fun!: Gay Male Pornography and the Pursuit of Masculinity (1993) 57 Saskatchewan Law Review 21; John Stoltenberg, Pornography and Freedom in Michael S Kimmel (ed), Men Confronting Pornography (1990) 60.

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way. Alternatively, it was possible for the law to reach the same result through a number of rhetorical devices aimed at rendering the ratio of that decision more flexible and its theoretical underpinnings hazier. From a pro-regulation perspective, the latter option was the most desirable. First, it would not need a justification of why the Canadian obscenity law system adopted a specifically radical feminist perspective on pornography. Secondly, it would not limit the regulation of lesbian and gay pornography to the instances of that expression deemed harmful from a radical feminist perspective. With regard to the latter point, consider that if the obscenity-related harm which the Court considers a good ground for the regulation of pornography is left unidentified, this harm may be of the same kind identified in Butler (that is harm in radical feminist terms), but it may also be harm of many other kinds. Relevantly here, it can also mean harm from a perspective of conservative morality: offence to prudish sensitivities, and the corruption of youth. And it can be whatever amounts to harm from a sufficiently developed theoretical/moral perspective on obscenity (whether already existing or not) that fits the rather abstract categories of the Supreme Courts discourse on obscenity. Thus, if one argues that gay pornography encourages unsafe sex practices, the harm rhetoric of Little Sisters could be used to justify banning this expression on the ground that it harms public health, that consenting people engaging in unsafe sex practices are enacting antisocial conduct, and that unprotected sex is dehumanizing, for [212] example to the extent that it shows no sufficient concern for ones and ones partners health. And so on. Ultimately, Little Sisters seems an ill-conceived attempt at reaching a compromise. By insisting that harm, rather than morality, is at the heart of Canadian pornography regulation, Binnie J seems to have tried to achieve two contradictory purposes. On the one hand, he wished to reassure progressive people and feminists that obscenity legislation in Canada was not geared towards the enforcement of traditional morality. On the other hand, by leaving the meaning of harm vague and potentially allencompassing, the Court seems to have been trying to recuperate the mark of liberal neutrality that it may have felt to have overstepped in Butler, where it privileged egalitarian morality in the context of pornography regulation. This might have been intended to satisfy those who objected to the perfectionism of Butler, that is, its

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promotion of one specific conception of the good life (that is, gender equality as promoted by anti-pornography feminism). The ranks of these critics may indeed have been large and varied. Butlers perfectionism is likely to have been objected to by some as a matter of principle (non-perfectionist liberals); by others because of the heavy-handed means chosen by the Court to promote such a conception (perfectionist liberals, feminists against censorship); and by others still in consideration of the particular good that the Court seemed to have chosen to further, that is, equality between the sexes rather than traditional values (conservative minded people).