It can really go either way
Here's somre precidents to DO go either way.
Criminal law -- Obscenity -- Not all material depicting adults engaged in sexually explicit consensual acts which are degrading or dehumanizing constituting obscenity -- Material must also create substantial risk of harm to society -- Crown having to prove risk of harm beyond reasonable doubt -- Depiction of sex outside context of emotional involvement not perceived by most members of community as substantially harmful -- Approval of films by Ontario Film Review Board not amounting to lawful justification or excuse and not negating possibility of finding that accused acted "knowingly" in selling obscene film -- Criminal Code, R.S.C. 1985, c.C-46, s.163.
All of the accused were charged with obscenity offences under s.163 of the Criminal Code.
H was in the business of renting and distributing videocassettes. Police seized 800 videos from his home, 10 of which were entered as exhibits at trial. The videos did not portray violence, cruelty, bestiality, masochism or child pornography. They consisted of a great number of explicit consensual sex acts, with minimal narrative linkage, occurring in a context which was devoid of love or affection. The videos had been reviewed by the Ontario Film Review Board ("OFRB") and approved for "restricted" viewing. H called P, chair of the OFRB, as an expert witness at his trial. P testified that community standards no longer required a context of "love and affection" in films of this nature, if they ever did. The trial judge found that the films were not degrading or dehumanizing and did not carry a risk of harm, and were accordingly not obscene. H was acquitted. The Crown appealed.
J owned and operated three stores whose business was, in part, the sale of videos approved by the OFRB and classified as "restricted". The videos seized in his case were very similar to those in the H case, in that they did not portray violence but did portray a large number of explicit consensual sex acts. P also testified as an expert witness at J's trial. The trial judge held that the films were degrading and dehumanizing, principally because they were "devoid of anything other than the merely physical act". He concluded that the total effect of the films was such that the risk of harm was substantial. The films were accordingly found to be obscene and J was convicted. He appealed.
R owned an "adult" video store. The videos seized were all approved by the OFRB and were of the same type as the cassettes in issue in the case of H and J. Again, P testified that he was of the opinion that none of the films approved by the OFRB could create a substantial risk of harm to society, and that everything approved by the OFRB would fall within the guidelines of contemporary community standards of tolerance. The trial judge found that there was no proof of social harm being caused by exposure to these films. He dismissed the charges. The Crown appealed. 913719 owned and operated an "adult" video store. Each of the tapes seized had been approved by the OFRB. Three of the videos contained violence and/or apparently non-consensual sex. The trial judge held that, while OFRB approval is indicative of the community standards of tolerance, such approval does not amount to a "lawful justification or excuse". The three videos which depicted sex coupled with violence were found to be obscene and the accused were convicted on the counts relating to them. The trial judge was not satisfied that the explicit depiction of sex in the other videos was degrading or dehumanizing, nor was she satisfied that these videos resulted in a substantial risk of societal harm. Accordingly, the charges relating to these videos were dismissed. The Crown did not appeal those acquittals. 913719 appealed the convictions.
S's company owned and operated a tavern and adult entertainment parlour which showed movies obtained by a satellite dish. The movies were not screened by the OFRB and did not have the OFRB's approval. The films contained scenes portraying necrophilia, violence, and vampirism in a sexual context. The trial judge found the films to be obscene, and S's conviction was affirmed on appeal. S appealed.
In R. v. Butler, the Supreme Court of Canada formulated a new legal framework within which to determine whether something is obscene. It did so by dividing "pornography" into three categories of materials: (1) explicit sex with violence; (2) explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing; and (3) explicit sex without violence that is neither degrading nor dehumanizing. Obscenity is defined in terms of what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. The first category of pornography set out above will almost always constitute the undue exploitation of sex. The second category may be undue if the risk of harm is substantial. The third category is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production.
The definition of criminal obscenity is limited so as to capture only material that creates a substantial risk of harm. Harm is a component of the offence. Harm in this context means that it predisposes persons to act in an antisocial manner. The stronger the inference of a risk of harm, the lesser the likelihood of tolerance.
What is or is not degrading or dehumanizing and what is or is not harmful are matters to be determined by the standards of the community as a whole. These are not matters to be determined by the tastes of individual judges. The fact that a provincial board does not consider a film to be degrading or dehumanizing and has approved it for exhibition and distribution is clearly evidence of contemporary Canadian standards of tolerance that a trial judge must weigh in objectively deciding whether, on all the evidence, such films are so out of keeping with prevailing societal mores that Canadians would not allow other Canadians to see them.
As s.163 was interpreted in Butler, harm is an essential component of the definition of obscenity. Under the Butler test, not all material depicting adults engaged in sexually explicit acts will be found to be obscene. A substantial risk of harm to society must be proved beyond a reasonable doubt and that proof must be found in the evidence at trial.
In the case of H, the Crown adduced no evidence to establish harmful effects. In R's case, the evidence adduced did not prove to the satisfaction of the judge that social harm would result from exposure to the films.
In 913719's appeal, the trial judge properly concluded with respect to the three films which resulted in convictions that their contents included the portrayal of sex coupled with violence and coercion or subordination and created the requisite risk of harm. The trial judge did not err in finding that the OFRB approval of the film amounted to a lawful justification or excuse. Moreover, OFRB approval does not negate any possibility of a finding that the accused acted "knowingly" in selling obscene films.
In the case of J, the record contained no evidence from which it could be concluded, as the trial judge in effect held, that community standards require that sexual activity take place within the context of love, affection, commitment or emotional involvement. Nor can it be concluded that the depiction of sex outside that context would be perceived by most members of the community as substantially harmful.
In the case of S, the violence, vampirism, and necrophilia shown in these films (which did not have OFRB approval) were patently such as to bring the films within the second of the Butler categories. Manifestly, these explicit depictions of indignities to the human body rendered the material degrading or dehumanizing and created the risk of harm contemplated by Butler.