## Facts

- Donald Victor Butler owned an adult video and magazine store in Winnipeg selling sexually explicit videos, magazines, and related items.
- Police searched the store in 1987 and seized pornographic materials.
- Butler was charged under the Criminal Code obscenity provisions (then s. 159, later renumbered s. 163), including selling obscene material, possessing obscene material for distribution or sale, and exposing obscene material to public view.
- The statutory definition treated as “obscene” any publication whose dominant characteristic is the “undue exploitation of sex,” including sex combined with crime, horror, cruelty, or violence.
- The seized materials were predominantly “hard core” pornography; some depicted violence, degradation, or dehumanization.
- The trial court convicted Butler on some counts, recognizing the materials fell within protected “expression” under the Charter’s freedom of expression guarantee.
- The Manitoba Court of Appeal upheld the convictions and the constitutionality of the obscenity provisions.
- Butler appealed, challenging the obscenity definition as infringing freedom of expression and not being justified under the Charter’s reasonable-limits clause.

## Issues

1. Whether the Criminal Code definition of obscenity infringes the Charter guarantee of freedom of expression.
2. If it infringes, whether the infringement is a reasonable limit justified in a free and democratic society.

## Decision

- The Supreme Court held that the obscenity provisions restrict expression and therefore infringe freedom of expression.
- The Court upheld the obscenity provisions as justified under the Charter’s reasonable-limits analysis when interpreted as targeting harm rather than mere moral disapproval.
- The Court adopted a harm-based interpretation of “undue exploitation of sex,” using community standards of tolerance informed by risk of harm.
- Applying that framework, the Court found much of the material at issue constituted “undue exploitation of sex,” and Butler’s convictions were largely upheld, with some adjustments to particular counts.

## Legal Principles

- Sexually explicit material, including pornography, is “expression” protected by constitutional free-expression guarantees; criminal obscenity law is a prima facie limitation.
- The constitutionally valid objective of obscenity law is prevention of harm to society, including harm linked to degrading and dehumanizing depictions and their effects on equality, rather than enforcement of taste or morality alone.
- “Undue exploitation of sex” is assessed through community standards of tolerance understood as what society would tolerate others being exposed to, in light of likely harm.
- The Court described three analytic categories for sexually explicit material:
  - Explicit sex without violence and without degradation or dehumanization is generally not obscene.
  - Explicit sex combined with violence is generally obscene as inherently harmful.
  - Explicit sex that is degrading or dehumanizing may be obscene where the degradation/dehumanization is dominant and the risk of harm is substantial.
- Under proportionality review, targeting “undue” exploitation (rather than all sexually explicit content) can satisfy minimal impairment and overall proportionality, especially where the restricted expression lies closer to the periphery of protected expression.

## Conclusion

The Court sustained the obscenity provisions by construing “undue exploitation of sex” as a harm-based standard: while the law limits expression, it can be upheld where directed at violent, degrading, or dehumanizing sexual materials that create a serious risk of harm, including harm to equality.


R. v. Butler, [1992] 1 S.C.R. 452 (Can. 1992)