Pornography poses a problem similar to that of hate speech. Pornography is a form of expression in that it does convey a meaning; however, pornography is degrading, dehumanizing, and inimical to other Charter values, especially the equality of women. Defining what constitutes pornography with sufficient precision to avoid threatening legitimate artistic or scientific treatment of eroticism and sexuality is notoriously difficult. Is it possible to criminalize that which is of no redeeming value without posing an unjustifiable risk to the freedom to explore the important human issues of sexuality and eroticism?
The Supreme Court of Canada was confronted with these issues in R v Butler.70The Criminal Code makes it an offence to make, publish, or circulate "obscene" materials. An obscene publication has as its "dominant characteristic" "the undue exploitation of sex, or of sex and any one or more of . . . crime, horror, cruelty, and violence."71This definition is vague and prosecutions for the offence are susceptible to misuse. The offence was enacted in an era when the use of criminal
prosecutions to enforce standards of sexual propriety and decency was readily accepted. Prosecutions against sexually explicit works of literary or artistic merit are certainly not unheard of. On the other hand, the reach of the provision has been to some degree restricted in recent years by judicial decisions that viewed the law as aimed at a different harm, namely, the legitimization or encouragement of sexual violence and victimization of women. These decisions interpreted the law as a means to protect the values of equality, specifically with respect to women, and emphasized the harm of sexual violence, degradation, and dehumanization.
In Butler, faced with a challenge to the law on the ground that it infringed freedom of expression, the Supreme Court built upon this interpretive framework for the obscenity offence. The judgment of Sopinka J first developed a test for determining whether representations of sex in any given case could be described as obscene. That test requires the courts to determine "what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure."72Justice Sopinka then went on to describe three categories of pornography: first, explicit sex with violence, which would almost always be punishable; second, explicit sex without violence but that is degrading and dehumanizing, which would be punishable if the risk of harm is substantial; and, third, explicit sex without violence and that is not dehumanizing or degrading, which would not be punishable unless children are employed in its production.73In effect, the Court found that it was possible...