R. V. Butler - Framework For Analysis

Framework For Analysis

To simplify the analysis Justice John Sopinka divided potentially obscene materials into three categories:

1. Explicit sex with violence;

2. Explicit sex without violence, but which subjects participants to treatment that is degrading or dehumanizing; and

3. Explicit sex without violence that is neither degrading nor dehumanizing.

Violence in this context was considered to include "both actual physical violence and threats of physical violence."

Justice John Sopinka then went on to state that materials in the first category "will almost always constitute the undue exploitation of sex." Material in the second category "may be undue if the risk of harm is substantial." And, finally, material in 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." Any material that was considered to be the "undue" exploitation of sex would fall within the definition of "obscene" in the Criminal Code of Canada.

The court also provided for an exception for materials of artistic merit.

This framework for analysis was re-affirmed by the Supreme Court of Canada in Little Sisters Book and Art Emporium v. Canada (Minister of Justice)