Obscenity trials are pretty rare in Canada these days. Any one taking constitutional law is likely to come face to face with the Butler decision, or one of its antecedents, and will know how difficult obscenity cases are to resolve. Popular as a prosecutorial tool for decades, our respect for free speech makes it harder and harder to punish someone for essentially expressing themselves in a way that is unpopular or somehow "harmful" to society. A detailed look on the internet these days - or even some of the more violent "splatter" films - reveals a great deal that could be deemed to be "degrading or dehumanizing", with the potential to cause harm, the SCCs general test for obscene material.
A Quebec case is now trying one of the first obscenity cases I've seen in years. A filmmaker who makes films involving severe - but fictional - violence, is suddenly facing criminal charges. I've read the expert's views on this, as reported, but I find myself struggling to believe that the effects he sets out are real, or, that if they are, a filmmaker should be punished for them. Trying to punish obscenity is always a fine line, and one wonders if it's simply one that's too fine for the criminal courts.
It's been awhile since the SCC has dealt head on with obscenity (in the form of a publication), but my prediction is that if Mr. Couture is convicted, we'll be seeing Butler Part II in the next few years.
