1.

The landscape of this case is revolving around a store owner named Donald Butler

whose store sold pornography, he would eventually be charged under the Code’s obscenity

provision for selling, possessing and publicly exposing obscene material. Butler would go on

to argue that these charges violated his freedom of expression under s.2(b) of the charter. The

judge of this trial would agree that obscene material could be protected under s.2(b), but not

in instances of the content of sexual activity mixed with violence or cruelty. As this may be

Butler was still convicted on 8 counts for distributing 8 films. This decision would be

appealed by the Manitoba Court of Appeal and the Appeal Judge would find that materials

would not be protected under s.2 (b), resulting in Butler being found guilty on all charges.

Butler would eventually appeal to the SCC on challenges to his s.2 and s.1 rights.

Leaf’s argument for this case is that pornography of this type supports sex

discrimination against individual women as well as women as a group. With this said, some

pornography cannot be protected under s.2 because it was a violent form of expression or

because it was a discriminating form of expression under s. 28, thus any limitation on s.2(b)

was justified under s. 1becuase of the social interest in equality in society.

The key concept of the argument was the test for obscenity, under this test the court

laid out three stages to test for obscenity, which goes as follows;

1. Explicit sex with violence;

2. Explicit sex without violence, but which subjects participants to treatment that is
degrading or dehumanizing; and
3. Explicit sex without violence is neither degrading nor dehumanizing.

With this test laid out, violence in this context was considered to include both actual physical

violence and threats of physical violence, Justice Sopinka would go on to state:

“that materials in the first category" will almost always constitute the undue exploitation of
sex." The material in the second category "may be undue if the risk of harm is substantial."
And, finally, material in the third category "is generally tolerated in our society and will not
qualify as the undue exploitation of sex unless it employs children in its production." Any
material that was considered to be the "undue" exploitation of sex would fall within the
definition of "obscene" in the Criminal Code.”

With these tests laid out, the court would ultimately conclude that Section 163 infringed upon

chart rights but was justifiable under s. 1 of the charter. As this may be the Butler decision

would place great emphasis on community standards for toleration since the test found that

the legal concept of obscenity under s.163 of the Code was subjective, changeable and

arguably meaningless.

3.

This case primarily deals with the interaction between s.163 and s. 2 (b), s.163 states:

“Every person commits an offence who makes, prints, publishes, distributes,

circulates or has in their possession for the purpose of publication, distribution or
circulation any obscene written matter, picture, model, phonograph record or any
other obscene thing.”

While s.2 (b) says:

“Everyone has the following fundamental freedoms: freedom of thought, belief,

opinion and expression, including freedom of the press and other media of
communication.”

With these two pieces laid out, it is fair for Butler to have challenged the trial judge since he

should be free to express under s.2 of the charter, furthermore without the framework laid out

yet, s.163 elements for obscenity would be hard to classify because it's subjective in its

writing. However, with the framework laid out by the SCC, the augment for the case was

fairer and Butler did make progress in the development of laws in this area.

4.

Do you think the verdict of this decision was correct?

Do you think the censorship of pornography is fair even though movies and other

media depict sex and violence in aggressive ways as well?

In regards to the framework laid out for obscenity, what do you feel is an appropriate

standard for when content becomes too obscene?