R v Butler, [1992] 1 S.C.R. 452 is a leading Supreme Court of Canada decision on pornography and state censorship. 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 outcome has been described as a victory for anti-pornography feminism and the Women's Legal Education and Action Fund, but a loss for alternative sexualities.
Background
The case involved one Donald Victor Butler, who owned a store called Avenue Video Boutique on Main Street in Winnipeg. The business began in August 1987 and handled 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. On October 19 of that year, Butler simply restarted the business at the 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 offence. 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. 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.
Decision
Freedom of expression
The Court found laws against obscenity would breach freedom of expression.. The Manitoba Court of Appeal had found that it would not, following the Supreme Court case Irwin Toy Ltd. v. Quebec (Attorney General) (1989) in saying the obscenity did not attempt to convey anything meaningful and might just be physical. However, the Supreme Court found fault with this opinion, saying that while the obscenity related to physical matters, they still made expression. In this case the expression was meant to be sexually exciting. The Court also noted that degrading sex may not be protected by the Charter, but a depiction of it would be expression.
The Supreme Court pointed to R. v. Keegstra (1990) to say the obscenity laws violated freedom of expression. Keegstra demonstrated freedom of expression should be interpreted expansively, and in the Prostitution Reference it was noted that whatever the message within the expression, the expression itself is protected by section 2.
The Court also considered a view suggested by the Attorney General of British Columbia, suggesting that films could not be as expressive as writing. The Supreme Court rejected the idea, noting that in making a film many creative choices in editing will have to be made.
Reasonable limits
The Court then turned to the question of whether the infringement of section 2 could be justified under section 1 of the Charter. This raised the possibility that the law was so vague that it might fail the section 1 requirement that a limit be "prescribed by law." The Court, citing the Beetz opinion in R. v. Morgentaler (1988), said that a law that can be interpreted differently is not necessarily too vague. The Court then decided that given the past case law, the terms "indecent" and "immoral" seemed sufficiently understandable.