QUICK TAKEAWAY
Obscenity in Canada, defined under s.163 of the Criminal Code, involves creating, distributing, or possessing obscene material like photos, videos, or audio recordings. This includes anything that unreasonably exploits sex, crime, horror, cruelty, and violence. The Supreme Court's R. v. Butler case established two tests for obscenity: community standards and artistic merit. Even though Canadians have the right to free expression, the government can set limits if justified. Conviction requires proof beyond a reasonable doubt, and obscenity is a hybrid offence, meaning it can be prosecuted as an indictable offence or by summary conviction, depending on factors like the incident's seriousness and the defendant's past criminal record. The maximum penalty, if indicted, is two years less a day in jail.
Table of Contents:
What is Obscenity in Canada?
Section 163 of the Criminal Code makes it an offence to print, publish or distribute obscene written matter, such as photos, video or audio recordings. It is also a crime to have these items in your possession, or to publicly exhibit "a disgusting object or an indecent show." This section of the Code makes it clear that any "undue exploitation of sex, crime, horror, cruelty and violence," shall be deemed to be obscene.
A 1992 Supreme Court of Canada decision (R. v. Butler) stated that in order for material to qualify as "obscene," the exploitation of sex must not only be a dominant characteristic, but also "undue." To judge what is undue, the court recommended two tests: community standards and artistic merit. The first looks at whether the material would be offensive to average citizen and the second is whether the portrayal of sex is essential for an artistic or similar purpose.
The Supreme Court further divided obscenity into three categories:
- Explicit sex with violence would almost always constitute obscenity.
- Explicit sex without violence but subjects people to degrading or dehumanizing treatment could be obscene if it exceeds the community tolerance.
- The community generally tolerates explicit sex without violence that is neither degrading nor dehumanizing and would not qualify as obscene.
Butler was found guilty, and his conviction was upheld because the material he was selling fell primarily into the first two categories. The R. v. Butler decision has significantly impacted the interpretation and application of obscenity laws in Canada and has influenced similar judgments in other jurisdictions.
Keep in mind that while freedom of expression is a fundamental right given to Canadians under the Charter of Rights and Freedoms, the Charter also allows the government to pass laws that limit free expression so long as the limits are reasonable and can be "justified in a free and democratic society."
What is Needed to Convict
For the Crown prosecutorLawyers who prosecutes charges on behalf of the Crown to win a conviction, the court must be satisfied beyond a reasonable doubtThe standard that must be exceeded to find someone guilty that you created, distributed or possessed the obscene materialShowing an undue exploitation of sex. Section 163 (3) states you cannot be convicted if it can be shown the material served the public good, adding that it is a "question of law" for the court to determine how and if the material served the public good.
Treated as a Hybrid Offence
Obscenity is a hybrid offenceAn offence prosecuted either as a summary conviction or as an indictable offence, meaning the Crown can prosecute the charge as an indictable offenceIndictable offences are more-serious criminal offences or by summary convictionUsed for lesser offences. Being found guilty of an indictable offence carries more severe penalties than a summary conviction. The Crown will consider such factors as the seriousness of the incident and your prior criminal record when deciding how to proceed.
Penalties for Obscenity
If the charge is treated as an indictable offence the maximum punishment is two years less a day in jail, with lesser penalty given if the Crown prosecutes it as a summary conviction.
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Abergel Goldstein & Partners LLP
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Glossary of Legal Terms
Crown prosecutor
Lawyers who act for the federal, provincial and territorial governments and prosecute people accused of crimes on behalf of the Crown.
Hybrid offence
Hybrid offences fall between a summary and an indictable offence. The Crown prosecutor chooses whether to treat the offence as a summary or indictable offence.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Obscene material
Any image or publication that features an undue exploitation of sex or any one or more of the following subjects: crime, horror, cruelty and violence.
Reasonable doubt
The Supreme Court of Canada has said that reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” and “that something less than absolute certainty is required, and that something more than probable guilt is required."
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
