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R. v. Butler case

In this case, the Court had to balance the right to freedom of expression under section 2 of the Canadian Charter of Rights and Freedoms with women's rights

The case involved one Donald Victor Butler, who owned a store called Avenue Video Boutique on Main Street in Winnipeg.

The business sold pornographic videos, magazines and sexual objects.

On August 21, the police arrived with a search warrant and confiscated the goods, and then charged Butler with possession and distribution of obscenity, crimes under section 163 (then section 159) of the Criminal Code of Canada. On October 19 of that year.

However despite the fact he was charged and had goods taken from him, Butler simply restarted the business at the exact same location as it had been before, and the police arrested Butler and an employee, Norma McCord ten days later. Both were charged for 77 counts under s. 159 (now s. 163); two counts of selling obscene material, 73 counts for possessing obscene material for the purpose of distribution, and one count of possessing obscene material for the purpose of sale, all of which were contrary to either s. 159 (2)(a) or s. 159 (1)(a).

Butler was found guilty of eight charges, while McCord was found guilty of two. They each had to pay $1000 per offense. The trial had been held on June 22, 1988. However, LEAF (Women's Legal Education and Action Fund), along with GAP (Group Against Pornography), and various other anti-pornography groups were unhappy with the verdict and appealed to the Crown. These groups found that Butler had got off too easily.

Little beknowns to GAP and LEAF, Butler had to return to court on July 4, 1991 where he was found guilty. In turn, Butler appealed and he went to the Supreme Court of Canada on February 27, 1992, where he was found guilty and pornography legislation was modified in Canada. Afterward, Butler moved away to Alberta where he was diagnosed with a severe heart condition. After legislation was passed, Butler had to return to trial, but was too ill to return to Winnipeg for the trial, so it was held in Alberta in 1993.

The final decision was: The Court found laws against obscenity would breach freedom of expression.

With a sufficient objective identified, it now had to be asked whether the law was rational and proportionate to the objective. The Court noted, then, that the law should not affect acceptable pornography, namely the type that might celebrate female sexuality and pleasure. Material that degrade women were similar to hate speech. It was rational to outlaw obscenity in order to protect society. Although it was disputed whether obscenity truly promotes harm, some reports did support this conclusion.

To simplify the analysis Justice John Sopinka divided potentially obscene materials into three categories:

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 that is neither degrading nor dehumanizing.

Violence in this context was consider to include "both actual physical violence and threats of physical violence."

Justice John Sopinka then went on to state that materials in the first category "will almost always constitute the undue exploitation of sex." 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 of Canada.

The court also provided for an exception for materials of artistic merit.

The decision has had an impact on other cases involving pornography and other alleged forms of indecency. The case Little Sisters Book and Art Emporium v. Canada (Minister of Justice) (2000) applied the Butler method of analysis of pornography to homosexual pornography. Critics of Butler argued that the test failed to recognize pornography that promotes equality of homosexuals. However, the Supreme Court replied that "This line of criticism underestimates Butler." Butler is partially meant to avoid a situation in which a biased idea of obscenity is imposed on others. The Supreme Court also found that "It may serve repeating that the national community standard [recognized in Butler] relates to harm not taste."

Other cases that include obscenity laws violating freedom of expression are: Irwin Toy Ltd. v. Quebec (Attorney General) (1989), and R. v. Keegstra (1990).

Some cases that have simlilar subjects include: List of Supreme Court of Canada cases (Lamer Court), R. v. Glad Day Bookshops Inc, and American Booksellers v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff'd mem., 475 U.S. 1001 (1986), an American case that reached the opposite result.

However it is also important to understand both sides to a case, so if you wish to learn more about the opposition that Butler faced follow this link: http://www.shelleylubben.com/

Work cited

Rybij, Gabriel P. "R. v. Butler." Prezi.com. Ed. Adam Somlai-Fischer. N.p., 24 Oct. 2011. Web. 19 Oct. 2011. <http://en.wikipedia.org/wiki/R._v._Butler>.

<http://www.hrcr.org/safrica/expression/r_butler.html>

<http://www.mapleleafweb.com/old/scc/public3/decisions/1992_1scr_452_02.html>

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