Obscenity Law

The vague, subjective, and indeterminate nature of Canadian obscenity law has been called “the most muddled law in Canada.” Recognizing that consistency and objectivity are important aspects in the running of any successful legal system, the Supreme Court of Canada has attempted to systematically clarify and modernize obscenity law. The ruling in R. v. Butler marked the transformation of the law of obscenity from a "moral-based" offence to a "harm-based" offence. The courts are now asked to determine, as best they can, what the community will tolerate others being exposed to, on the basis of the degree of harm that may flow from such exposure. Harm, in this context, means the predisposition to antisocial conduct. When probing beyond superficial appearances, it is clear that the modernizing moves made by the Canadian judiciary, in introducing the community standard of harm test to enforce obscenity law, are mere rhetorical covers for the continued protection of conventional morality. The determination of “community standards” is left primarily to the subjective judgment and hunches of criminal justice personnel. In this context, the standard to which obscenity laws are based can be uncertain and ill defined, making it very difficult to ensure consistency in the application of the obscenity law and to ask the public to abide by standards that are not clearly demarcated in the first place. This is a disturbing state of affairs for any criminal offense. This essay will firstly demarcate the roles in which judges currently play in deciding upon the nature of crime. Secondly, with the use of previous rulings on obscenity by the Supreme Court of Canada, the evolution of Canadian obscenity law will be analyzed. Thirdly, the involvement of the community standard of tolerance within the current obscenity definition will be flagged as prejudiced against non-mainstream minority representations of sex and sexuality. Fourthly, the Butler decision will be analyzed within the gay