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LexView 42.0 - Challenge to Obscenity Test Fails

From the Archived "LexView" Series

Does the legal test for obscenity discriminate against homosexuals and lesbians? Is Parliament entitled to enact legislation intended to protect society from harm caused by the proliferation of obscene materials?

Little Sisters Book and Art Emporium v. Canada (Minister of Justice)
Supreme Court of Canada
2000 SCC 69
Date of Decisions: December 15, 2000
Date of Publication: December 22, 2000

In this issue:

  1. Key Terms
  2. Summary of Facts
  3. Significant Issues
  4. Decision and the Court's Reasons
  5. LexView Commentary

Key Terms:

the definition of obscenity; freedom of expression; equality; relationship between harm and morality; press coverage of decision

Summary of Facts:

Little Sisters Book and Art Emporium (hereafter, "the Bookstore") is a specialty bookstore catering to homosexuals and lesbians. The federal Customs Act authorizes customs officers to detain and prohibit imported goods which are deemed to be obscene under s.163(8) of the Criminal Code. On many occasions, customs officers detained and prohibited materials bound for the Bookstore, including materials that public libraries and other non-specialty bookstores were allowed to import. The Bookstore brought an application challenging the constitutionality of those sections of the Customs Act and Customs Tariff which give customs officers the authority to determine whether materials are obscene. The Bookstore argued that the customs legislation infringed freedom of expression, which is protected by s.2(b) of the Charter, as well as the equality provision of s.15(1) of the Charter. It also argued that the application of the legislation by customs officials violated s.2(b) and s.15(1) of the Charter.

The trial judge ruled that the customs legislation was not discriminatory and, although he found that it infringed the freedom of expression, he ultimately determined that the infringement was justified under s.1 of the Charter. However, he accepted the Bookstores claim that the application of the legislation by the customs officers was discriminatory, and was also an unjustifiable infringement of freedom of expression. He found that Customs officials had made many errors in classification as a result of the systematic targeting of the Bookstore. He refused to strike down the legislation as unconstitutional, but made a declaration under s.24(1) of the Charter that parts of the Customs Act had at times been construed and applied in a manner contrary to s.2(b) and s.15(1) of the Canadian Charter of Rights and Freedoms.

The Crown did not appeal this declaration, and the Bookstore's appeal to the BC Court of Appeal—to have the customs legislation struck down—was dismissed. The Bookstore then appealed to the Supreme Court of Canada.

Significant Issues:

Does the legal test for obscenity discriminate against homosexuals and lesbians? Is Parliament entitled to enact legislation intended to protect society from harm caused by the proliferation of obscene materials?

Decision and The Court's Reasons:

The Court rejected unanimously the Bookstore's claim that the interpretation of "obscenity" under the Criminal Code discriminates against homosexuals and lesbians. It also rejected the claim that the customs legislation itself does not violate s.15(1) of the Charter, and while it does violate s.2(a), that violation is justified.

The Court agreed with the trial judge and the Court of Appeal that the customs legislation had been applied discriminatorily against the Bookstore. The remedy fashioned by the majority of the Court was to strike down the "reverse onus" provision of the Customs Act which placed the onus on the importer to prove that impugned material is not obscene. The dissenting judges would have instead struck down a portion of the customs legislation, and left it to Parliament to fashion a replacement provision.

The Bookstore attacked the constitutionality of the Customs legislation on two grounds: (1) that the interpretation of the "obscenity" provision of the Criminal Code (incorporated by reference into the Customs legislation) does not apply to gay and lesbian erotica in the same way as it does to heterosexual erotica, or perhaps not at all, (2) that the procedure set out in the Customs legislation is so defective that it is incapable of being administered in a way consistent with Charter equality rights and freedom of expression.

As to the first ground of appeal, Justice Binnie on behalf of the majority, recalled the Court's test for obscenity in R. v. Butler (1992). In that decision, the Court held that obscenity was to be determined by an appeal to the community standards of tolerance. It was held that the community would tolerate persons viewing any materials whatsoever provided that exposure to those materials did not create a substantial risk of harm. The Butler test is thus described as a "harm-based" test.

The Bookstore (and the interveners LEAF and EGALE) argued that the Butler test discriminates against homosexuals and lesbians. Gay and lesbian pornography, they argued, plays an important role in providing a positive self-image for homosexuals and lesbians and thus has greater value than heterosexual pornography. The Canadian Civil Liberties Union argued that erotica cannot be harmful to homosexuals and lesbians, but is rather "a key element of the quest for self-fulfilment." The Court responded that these arguments miss the point of the Butler test, which is not to criminalize all sexual expression, only that which is harmful or, to express it another way, "incompatible with society's proper functioning."

The Bookstore also argued that the Court's "harm-based" test is "merely morality in disguise". The Bookstore and interveners charged that the test is simply a front for the imposition of majoritarian tastes in sexuality. LEAF characterized the Butler test for obscenity as concerned solely with preventing harm to women, and argued that far from harming women, sado-masochistic practices in gay and lesbian culture play an "emancipatory role". LEAF contended that because gender discrimination is not an issue in gay and lesbian erotica, the Butler test ought not to apply. The Court rejected this argument, and noted the response from the intervener Equality Now, that "gay and lesbian individuals have as much right as their heterosexual counterparts to be protected from depictions of sex ... that can cause harm that exceeds community standards of tolerance."

The Court rejected in toto the objections to the Butler test made by the Bookstore, EGALE, and LEAF. Justice Iacobucci (in dissent, though not on this issue) concluded that:

The types of harms that Butler concluded might be exacerbated by obscenity are capable of being present in all human relationships, regardless of the sexual orientation of the individuals involved. There is no evidence that the homosexual community is immune from the kinds of problems that s.163's obscenity provisions are designed to address. On the contrary, the evidence is, sadly, that gay and lesbian relationships suffer from physical, sexual, and mental abuse in much the same way that heterosexual relationships do. ...As a result, I conclude that there is a reasoned apprehension of harm from homosexual obscenity, and that Butler should apply to all obscenity, regardless of the sexual orientation of its audience.

As to the Bookstore's second ground of attack—that the procedure set out in the Customs legislation is so defective that it is incapable of being administered in a way consistent with Charter rights—the Bookstore was unsuccessful. The majority held that the Customs legislation did not discriminate on the grounds of sexual orientation. The majority concluded that the Customs legislation infringed freedom of expression, but also found that that infringement was justified by the salutary benefit of preventing the entry into Canada of obscene material.Finding the Customs legislation to be constitutionally valid is not, however, the end of the matter. The Court addressed problems with the implementation of the Customs legislation, finding that it had been applied by Customs officials in a way which violated the right of the Bookstore to equality of treatment and to freedom of expression, and that these violations could not be justified. The majority noted that there had been changes in procedures since the beginning of the litigation six years ago, and added to those the procedural requirement that the onus of proving materials to be obscene should rest with the Crown and not with the importer.

LexView Commentary:

The widespread mis-reporting of the decision in major media was startling (take, for example, the misleading banner headline from the Globe and Mail newspaper, "Gay-book sellers win Supreme Court case"). Much of the press has declared this case to be a victory for lesbians and homosexuals. To the contrary, the central Charter challenge in this case failed, and the government's authority to prevent obscene materials from entering the country was upheld. The case was a comprehensive defeat for advocacy groups (LEAF, EGALE, the Canadian Civil Liberties Association) which supported the Bookstore. The Court upheld a common standard for obscenity for all citizens and refused to create a separate legal standard for homosexuals and lesbians. The Court instead acknowledged the interest of homosexuals and lesbians—in common with the interest of heterosexuals—to live in a society which is free of harmful and degrading depictions of human sexuality.

The Bookstore was, however, successful in obtaining a modification of the customs procedure (which the Court identified as unfairly targeting the Bookstore); the onus is now placed on the federal government to establish in court, within 30 days of a seizure, that any material sought to be banned is obscene. This will make life significantly less burdensome for the Bookstore and its customers. The standards for determining what is obscene will now be determined in the more open and accessible venue of the courts, on a set timetable. As the majority noted, this remedy is essentially a more detailed version of the relief originally granted by the trial judge, which the Crown did not contest.

Whether this new timetable and the reverse onus will unduly frustrate the government in its attempts to stop the importation of obscene materials remains to be seen, but all things being equal, a shift to more definite standards and a more public procedure is a positive step in a free and democratic society. Our preference, however, in cases such as this, is that the Court resist modifying legislation, and instead (as the dissenting judges urged) strike the impugned legislative provision down, and give a temporary suspension of invalidity in order to allow Parliament to fashion a more comprehensive remedy.

On the other hand, the Bookstore (and the multiplicity of parties intervening) failed completely in their efforts to persuade the Court to redefine obscenity so as to exempt gay and lesbian sexual expression, and to declare it to be inherently harmless. This failure came despite the recent proliferation of advocacy scholarship surrounding the case, written by academics (who in some cases are also members of the intervening groups) advancing a gay and lesbian critique of the Court's test for determining what constitutes the "undue" exploitation of sex.

The Court, in denying the claim that the Customs Act violates the Charter right to equality, held that the test for obscenity in Butler "is directed to the prevention of harm, and is indifferent to whether such harm arises in the context of heterosexuality or homosexuality." The intervener LEAF argued that the purpose of the Butler test was specifically to prevent the promotion of harmful attitudes towards women, and that the harm of gender discrimination is not fuelled by gay and lesbian pornography. However, the harm which the legislative prohibitions of obscenity attempts to prevent, the Court says, is not limited to violence against women but reaches women and men, homosexual and heterosexual. Thus, the equality provision of the Charter does not provide a "general exemption from the Butler test" for gay and lesbian culture. Much of the mainstream media failed to comment on this central finding.

The Court thus affirmed the role of the government to protect society from the harm which it perceives to flow from obscene publications. What, precisely, constitutes "harm" is the place where the Court's judgment is incompletely theorized and runs into some difficulty. As we have noted in other LexView commentaries, the weakness of much of the Court's jurisprudence is its awkward handling of overtly moral questions. This is the inevitable result of a seemingly intractable fear of tackling moral questions head-on. This fear of moral philosophy results in an artificial and strained characterization of issues which shuffle the inevitable moral judgments out of sight so the Court can portray its judgments as uncontroversial and non-evaluative applications of legal technique.

The Bookstore and some of the interveners argued that the obscenity test rests on idiosyncratic moral evaluations which discriminate against sexual minorities on the basis of bias and personal taste rather than reason. They argued furthermore that while the Court claims to be concerned with the prevention of harm, it is instead arbitrarily promoting heterosexual moral norms. In its eagerness to reassure the interveners that it is not "imposing morality", the Court unfortunately resorts to some incautious and potentially misleading rhetoric, setting up an untenable distinction between "morality" and "taste" on the one hand and "harm" on the other.

The Court attempts to head-off this claim that the community standards test is an exercise in moral judgment, by describing it as the standard of "tolerance of harm" as opposed to "taste". The standard which the Court attributes to the community is that the community will tolerate others viewing anything except those materials which cause harm. The Court says that the Butler test is a harm-based test which moves away from a "morality-based approach". It says that "the community standard of tolerance is based on the reasonable apprehension of harm, not on morality".

"Morality", on this construction, is equated with "taste" and is thus saddled with connotations of subjectivity and arbitrariness. Morality is thus not a matter of reason, but of non-rational preferences which a person happens to hold, and which preferences could well have turned out to be different and with no important consequence. To impose one's "taste" on others is simply to impose one's will for no good reason—certainly not for anyone else's benefit. "Harm", on the other hand, is juxtaposed with morality as falling within the domain of objective standards which are in the common service of all.

A look at the Court's "community standards test", by which it purports to crown "harm" and expel "morality", exposes the falsity of the distinction. First of all, the Court says that applying the "community standards test" to determine whether a publication unduly exploits sex is not a matter of an opinion poll or counting votes. It has little to do with actual community standards in the sense of what a majority of people may believe about the morality of any particular act. Instead, the Court states that it is an attributed standard. That is, it is a standard which the Court itself has set using its own criteria. And the reason why the Court adopts the standard that it does is because it thinks it to be the correct standard by which to judge whether some material is obscene, not because it thinks that a majority of people necessarily hold to this standard. As such, it is a moral standard—the product of a normative exercise in moral judgment about what should and should not be permitted in society. Identification of the avoidance of "harm" as the relevant standard is the product of the exercise of moral judgment. Thus in its own legal reasoning, the Court shows that morality and moral reasoning are not inherently an unreasoned imposition of one's tastes.

But what is harm, and what is its relationship to morality? The Court never provides a wholly satisfactory explanation. The Court defines harm as "what society formally recognizes as incompatible with its proper functioning." "Morality" and "harm" are inter-defined terms, and the Court fetters its analysis of harm by supposing that they must be distinct. Moral philosophers have variously described harm as "a setback to one's interests", and "interference with one's well-being." What a person's true interests are, and what it means for a life to go well, are questions of moral philosophy. One subset of the concerns of moral philosophy is the question of what constitutes harm to others. This question of what constitutes a harm to another person is commonly referred to, of course, as a question of justice.

The Court is correct in its impulse to locate a distinction between harm and "something else", but that something else is not "morality." The distinction which the Court reaches for is a distinction between two types of moral consideration, one which is relevant to the criminal law and one which is not. It is not all of morality which is relevant to the legislator. This is because not all of morality bears immediately on common life. It is not the job of government to use the criminal law to inculcate all-round virtue in part because such virtue is not to be legislated. The criminal law is not concerned with the "habits of the heart". Rather, its role is limited to ensuring that people abide by those mutual restraints which are necessary for achieving and maintaining justice and peace within society. Government is to secure those social conditions necessary for persons to live their lives well. It is to attend to threats to justice and problems of co-ordination that persons are not well-equipped to deal with on their own.

The question of what constitutes harm to a person is understood by reference to that person's interests, and that is a question settled by moral reasoning. So the Court's claim that the test for obscenity is concerned only with assessing harm and not with morality is simply inaccurate. When it says that it is not concerned with morality, it can only mean that it is not concerned with that aspect of morality which does not bear on interpersonal relations (i.e. on justice). The criminal laws which prohibit obscene publications (and the customs tariff which prevents their importation into Canada) have been enacted in order to prevent harm. They are thus part of this mandate to secure justice and are motivated by a moral vision—in this case, the Court's rejection of the "dehumanizing" and "degrading" aspects of certain sexual conduct, flowing from a moral standard that involves a recognition of the "dignity of the human person." The affirmation of "the dignity of the human person" (and its roots in classical and religious traditions) was recently discussed in LexView 40.0, Chamberlain v. Surrey School District.

The Court reminds us that in order to establish whether there is a reasonable apprehension of harm from exposure to some material, the Crown is "not required to adduce a higher level of proof than the subject matter admits of", and that harm is not "susceptible to proof in the traditional way" (i.e. it is not a matter of measuring and collecting empirical data). Why is it that the question of whether some material is obscene may not admit of a statistical answer? It is because the answer to the question of what is harmful falls often within the moral domain, and more specifically, with a moral vision of what society should be like. This is a moral vision based on a "harm" that is not simply reducible to empirical proof in the way many other matters are.

The Court defines harm as "what society formally recognizes as incompatible with its proper functioning." What then, we must ask, is the "proper functioning" of a society? It is perhaps easier to answer the negative question of what is incompatible with that proper function.

Part of the role of any society is the raising of children, and part of that responsibility is to see that children attain mature attitudes towards sexual conduct so that they are not hampered by an unrestrained, impulsive, and depersonalized sexuality that prevents them from forming lasting, meaningful sexual relationships. Consider the prohibitions on depictions of bestiality or necrophilia. Such practices are viewed by our society as harmful to the participants, and depictions of them as harmful to the understandings of sex by those persons who might be exposed to those depictions, regardless of whether they consented to the exposure or even actively sought it out.

People have an interest—as a matter of justice to each other as well as other generations—to preserve a social structure, or a culture, in which sexual conduct has meaning beyond pure will to personal pleasure. Anything which attacks, and threatens to damage, the dignity and beauty of sexual conduct in its mutuality is incompatible with the proper functioning of society. This is especially the case when the material in question undermines the ability to educate children to understand sexual conduct in a way which instantiates friendship and marital exclusivity.

Government does not have the authority to use the coercive power of the criminal law to bring about virtuous dispositions. It is only concerned with outward acts, and only those acts which bear on common life. Thus the Court states that judges do not have the authority to enforce their own standards of what the Court unfortunately expresses as "morality". This area which is outside judicial authority most certainly deals with moral convictions, but it is not the sum total of morality. The Court mislabels the attention to the interpersonal dimension (i.e. the justice) of maintaining a moral environment which is hospitable to a healthy sexuality as a matter of "harm" and not "morality." It can then talk as though moral considerations have been banished from the law when they have, in fact, simply been obscured. This may have some unhappy consequences when those who sexualize children, and engage in other dehumanizing and degrading practices wish to justify themselves under the Charter.

In addition, the failure to articulate properly the moral ground of decisions perpetuates the illusion that law and morality function in entirely separate compartments. This wide-spread error is a hold-over from legal positivism of earlier eras which has been widely discredited by philosophers and recognized to provide the groundwork for a dominance of principle by sheer power: hardly the kind of analysis suited to the maintenance of a "free and democratic society" over time or a deeper understanding of the grounds and principles of ordered freedom. It is time for the court to jettison the legal fiction that it can determine matters such as this free from an articulated moral vision of the person and community. The acceptance of pluralism and multi-culturalism as key to a country's cultural identity does not (and as this case shows, cannot) mean that there are no grounds for objective moral principles in law. Denying, as the Court largely does in this case, that decisions are based on moral standards while at the same time utilizing a tentative and obscuring language for its reasoning, simply perpetuates confusion, leaves legal standards susceptible to unprincipled judicial manipulation, and misleads citizens as to the nature of moral determinations.


This issue of LexView was researched and written by:
Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of the British Columbia Bar
Brad Miller, B.Comm., LL.B, LL.M. (magna cum laude) of the British Columbia Bar.

LexView is a project brought to you by the Cardus Centre for Cultural Renewal, a not-for-profit agency. LexView is made possible through the donations of foundations, corporations and individuals. To inquire about making your contribution, please contact Cardus.

Copyright © 2010 Iain Benson and Brad Miller

LexView is an on-going review of judgments of Canadian courts that have an impact on the complex interrelationships between law, public policy, culture, moral reasoning and religious belief.

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