Assistant
Professor Richard Jochelson (Criminal Justice, University of Winnipeg)
In 2005, the Supreme Court of Canada, in R. v. Labaye,[1] at long last retired the community standards of tolerance test for obscenity and indecency.[2] While the former community standards of tolerance test had a long and laboured history, its modern iteration melded the determination of “tolerance” with “undue exploitation of sex” (or “harm”). This later test was famously constituted in R. v. Butler,[3] where the majority of the Court considered the constitutionality of the obscenity provisions in the Criminal Code (which prohibit expression of unduly exploited sex)[4] and summarized the test succinctly as it applied to sexually explicit expression. The test was an objective assessment of the tolerance of Canadians (that is, whether the average Canadian would tolerate other Canadians being exposed to the impugned materials):
[T]he portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex [and therefore be intolerable to the average Canadian]. Explicit sex which is degrading or dehumanizing may be undue if the risk of harm is substantial. Finally, explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production.[5]
In Labaye, the majority considered this Butler construction and reconstituted to clarify the community standards of tolerance test as a harm test for obscenity and indecency. It did so in the context of determining whether the appellant was keeping a “common bawdy-house” for the “practice of acts of indecency” under s. 210(1) of the Criminal Code.[6] The assessment of the Court took place in the context of a swingers’ club operating in a Montreal apartment, which required members to pay dues, interviews prior to joining, and an opportunity for its members to engage in consensual sex with other members. Since “only those already disposed to this sort of sexual activity were allowed to participate and watch,”[7] “[n]o one was pressured to have sex, paid for sex, or treated as a mere sexual object for the gratification of others.”[8] Further, there was no “physical or psychological harm to persons participating,”[9] and the majority could not find sufficient harm to trigger indecency.
In reaching this decision, the majority, emphasizing more stringent causality between exposure to the activities and harm, reframed the new test for obscenity and indecency in the Criminal Code:
Indecent criminal conduct [or obscenity] will be established where the Crown proves beyond a reasonable doubt the following two requirements:
1. That, by its nature, the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by, for example:
(a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or
(b) predisposing others to anti-social behaviour; or
(c) physically or psychologically harming persons involved in the conduct, and
2. That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society.[10]
The new test has profound implications for the application of obscenity law in Canada (and obviously indecency – a matter I shall leave for another day). Yet, we have not seen a profound application of the new test in lower courts in the context of sexually explicit expression, nor has much scholarly debate ensued. Few reported cases have, thus far, used the newly created test in the context of sexually explicit materials or in the freedom of expression context and the results of those cases do not provide ultimate clarity on the new approach.[11] For example, in Latreille, the Court found no harm in sadomasochistic photos relying on the notion that few members of the public would be exposed to the materials unwittingly. Despite the Court’s emphasis on the lack of causality of harm, the Court curiously noted that the materials did not exceed the tolerance standards of members of the Canadian community – language from the old community standards of tolerance test.[12]
The new language of causality espoused by the Supreme Court of Canada in Labaye might give hope to those who believed that the community standards of tolerance test was “a judicial construct filling a legislative vacuum”[13] and that a test requiring more stringent causality would sufficiently fill the vacuum. There are at least three reasons to be cautiously pessimistic about the increased causal thrust of Labaye.
First, the majority in Labaye saw itself as merely restating the harm test. The majority expressed approval of the community standards of tolerance test as constructed in its preceding cases – most notably Butler and Little Sisters Book and Art Emporium v. Canada (Minister of Justice):[14]
The shift to a harm-based rationale was completed by this Court's decisions in R. v. Butler … and Little Sisters.[15]
...
The Court in Little Sisters confirmed that harm is an essential ingredient of obscenity. As Binnie J. pointed out, “the phrase ‘degrading or dehumanizing’ in Butler is qualified immediately by the words ‘if the risk of harm is substantial’ .... This makes it clear that not all sexually explicit erotica depicting adults engaged in conduct which is considered to be degrading or dehumanizing is obscene. The material must also create a substantial risk of harm which exceeds the community's tolerance.”[16]
If Butler and Little Sisters are examples of a harm test properly constructed, this risks undoing the Court’s contention that harm is the ultimate arbiter of obscenity and indecency. This is a perplexing judicial turn because the Court in Butler all but conceded that harm due to exposure to sexually explicit material was virtually impossible to prove. The majority in Butler noted that “[w]hile a direct link between obscenity and harm to society may be difficult, if not impossible, to establish, it is reasonable to presume that exposure to images bears a causal relationship to changes in attitudes and beliefs.”[17]
This leads to a second observation. If the Court in Labaye is relying on Butler as the “gold standard” for a harm test, it surely must be concerned with something less than a true causal link between exposures to sexually explicit materials and harm than a strict reading of its reformulated test suggests. Indeed, a close reading of Labaye reveals that the majority has left plenty of open space in which to forgive a dearth of evidentiary causality. While the majority calls for “expert evidence … to establish that the nature and degree of the harm … [is] incompatible with the proper functioning of society,”[18] the majority also manages to temper this requirement with a “sliding scale of harm” assessment. The Court concedes in a short paragraph, that actual harm is not required in all circumstances in order to found an obscenity or indecency charge.[19] Rather, the Crown could merely establish that there is a risk that exposure to the materials results in harm that is incompatible with the functioning of society.[20]
Most perplexingly, the Court in Labaye notes that “[t]he more extreme the nature of the harm, the lower the degree of risk that may be required to permit use of the ultimate sanction of criminal law. Sometimes, a small risk can be said to be incompatible with the proper functioning of society.”[21] The majority then refers to a “terrorist” attack as emblematic of such an extreme nature of harm. Yet, one cannot help but feel the metaphor is inappropriate given that the Court is dealing with issues of obscenity and indecency, not national security. Given the lip service paid to the principled nature of the Butler and Little Sisters decisions, one cannot help but query whether the Court was musing that sexually explicit speech might be an area of analysis where the nature of the harm was severe enough so as to permit a low degree of risk to meet the causal threshold. The majority does little to defuse this subtext other than noting that exposure to sexual conduct will usually require a “probability of risk.”[22] Yet, is this standard any more reassuring than the contention of the Butler Court that exposure to “[e]xplicit sex which is degrading or dehumanizing may be undue if the risk of harm is substantial?”[23] Is the Labaye standard more substantial than the proclamation of the Butler Court that a risk of harm can be established by inference, and that the “inference may be drawn from the material itself or from the material and other evidence?”[24]
Lastly, the Labaye Court makes an interesting admission toward the end of its analysis. The majority, having swept the community standards of tolerance test into the dustbin of discarded precedent, embarks on an alternative argument. Having not found that the nature of harm was substantial enough to meet the level of indecency for the purposes of the “common bawdy-house” charge (effectively ending the analysis), the majority ponders whether the degree of harm might have hypothetically been severe enough for sanction had the nature of the harm been established. The majority argues that it was unlikely that the conduct at issue “rose to the level of incompatibility with the proper functioning of society.”[25] The majority would have been wise to end the analysis there, for its next line will provide confusing fodder for lower courts to choke upon for years to come. The majority concluded by noting, “[c]onsensual conduct behind code-locked doors can hardly be supposed to jeopardize a society as vigorous and tolerant as Canadian society.”[26] Has the majority not just reinserted the community standards of tolerance test back into the analysis in this last line? Could a lower court not use this obiter to once again objectively evaluate what most Canadians would tolerate in our “vigorous” society? Has the Court not just simply reconstituted the mainstream cognitive lens of analysis?
It is no wonder that academic debate on obscenity law has slowed to a crawl in the wake of Labaye. The majority has issued a judgment which apparently reconstitutes the old community standards of tolerance test as a harm test. Yet, in doing so, the majority may have simply re-jigged the test such that all analyses of community standards, while subsisting, hide beneath the surface. This is an interesting idea to explore and I would urge those who have previously problematized the community standards of tolerance test to bring their collective expertise to this debate. I would urge them to give content to this new judicial vacuum – the harm test.
[1] [2005] 3 S.C.R. 728 [Labaye].
[2] I explore a “critical” history of the test more fully in R. Jochelson, “After Labaye: The Harm Test of Obscenity, the New Judicial Vacuum and the Relevance of Familiar Voices” Alta. L. Rev. [forthcoming in 2009].
[3] [1992] 1 S.C.R. 452 [Butler].
[4] R.S.C. 1985, c. C-46, s.163(8).
[5] Supra note 3 at 485.
[6] Supra note 4, s.210(1) .
[7] Supra note 1 at para. 66.
[8] Ibid. at para. 67.
[9] Ibid. at para. 68.
[10] Ibid. at para. 62 [emphasis in original].
[11] See e.g. R. v. Colalillo, [2005] Q.J. No. 19771 (Sup. Ct.); Latreille c. R., 2007 QCCA 1330 [Latreille].
[12] Latreille, ibid. at para. 6.
[13] L.W. Sumner, The Hateful and the Obscene: Studies in the Limits of Free Expression (Toronto: University of Toronto Press, 2004) at 125.
[14] 2000 SCC 69, [2000] 2 S.C.R. 1120 [Little Sisters].
[15] Supra note 1 at para. 21 [citations omitted].
[16] Ibid. at para. 22 [citations omitted, emphasis in original].
[17] Supra note 3 at 501.
[18] Supra note 1 at para. 60.
[19] Ibid. at para. 61.
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] Supra note 3 at 485.
[24] Ibid.
[25] Supra note 1 at para 71.
[26] Ibid. [emphasis in original].
