When Will They Ever Get it Right? A Gay Analysis of R. v. Butler

Abstract

In February, 1992, the Supreme Court of Canada released its decision in the case of R. v. Butler. This ruling upheld the obscenity provisions in s. 163 of the Criminal Code, and in so doing, the court attempted to clarify some of the existing confusion surrounding their interpretation. The court ruled that a work's sexual explicitness alone is insufficient to bring it within the definition of obscenity in s. 163(8). In order to qualify as obscene, the impugned materials must combine sex with violence, degradation, or dehumanization. The rationale for prohibiting such materials was that there is a reasonable apprehension that their availability harms society generally, and women's pursuit of equality in particular. Ironically, on April 30, 1992, the first obscenity charges after the Butler decision were laid against Glad Day Bookshop in Toronto for selling a lesbian magazine called Bad Attitude, a magazine made by women for women about women's sexuality. Further, on July 15, 1992, the first application of the interpretation of s. 163(8) set out in Butler, came in the unreported case of Glad Day Bookshop Inc. and Jearald Moldenhauer v. Deputy Minister of National Revenue for Customs and Excise. In this decision, Justice Hayes ruled that twelve sexually explicit gay magazines, comics, and books being detained by Canada Customs were obscene. One magazine was considered to be obscene because it contained "extensive and excessive descriptions of the acts and professed pleasures and the appreciation of the physical activity," and another was obscene because it described sexual activity that "does not arise from any ongoing human relationship." The foregoing discussion contains the essence of what is a serious shortcoming of the current obscenity provisions of the Criminal Code and their subsequent interpretation in R. v. Butler. Specifically, while s. 163(8) was interpreted in a manner aimed ostensibly at protecting women from the harmful impact of degrading sexual images, there is no recognition or evaluation of its potential impact on gay and lesbian culture. As is often the case in mainstream law, this perspective is simply invisible. This case comment shows how a gay perspective would impact on each stage of the Supreme Court's Charter analysis in Butler. After a synopsis of the Butler decision, an analysis of the short-comings of the court's approach to the substantive elements in the decision, (i.e., the freedom of expression and equality guarantees) is undertaken, followed by a critique of the s. 1 analysis.