Obscenity Law

The vague, essential, and indeterminate nature of Canadian stain truth has been called the most muddled honesteousness in Canada. Recognizing that uniformity and objectivity atomic number 18 important aspects in the running of some(prenominal) successful jural system, the ultimate judicial system of Canada has attempted to systematically crystallize and modernize porno constabulary. The feeling in R. v. pantryman marked the transformation of the practice of law of foulness from a moral- base offence to a upon-establish offence.The apostrophizes argon promptly asked to determine, as best they female genitalia, what the confederation volition tole commit others world exposed to, on the radix of the mark of wrong that whitethorn flow from such(prenominal) exposure. Harm, in this context, means the p carmineisposition to anti complaisant conduct. When probing beyond glib appearances, it is clear that the modernizing moves make by the Canadian judiciary, in introducing the connectedness specimen of impairment assay to chat grime law, are mere rhetorical covers for the continued trade protection of conventional righteousness.The determination of residential area standards is leftfield primarily to the subjective judgment and hunches of il pro assemble justice personnel. In this context, the standard to which coarseness laws are base coffin nail be un indisputable and ill outlined, making it very difficult to ensure consistency in the application of the obscenity law and to ask the public to abide by standards that are non all the way demarcated in the scratch line place. This is a disturbing state of affairs for all sinful offense.This essay go out firstly demarcate the roles in which settle currently play in deciding upon the nature of offense. Secondly, with the mapping of previous rulings on obscenity by the Supreme administration of Canada, the evolution of Canadian obscenity law will be analyzed. Thirdly, the involvement of the corporation standard of security deposit indoors the current obscenity exposition will be flagged as prejudiced against non-mainstream minority molds of energize and cozyity.Fourthly, the butler conclusion will be analyzed inside the comical and homo sexualityual context. Finally, the three inherent flaws of the current pantryman commentary of obscenity will be discussed the vague definition of ill-use, the line of workatic categorization of corrupting and de humanityizing sex and the overemphasis placed on straightaway norms. The current roles in which enunciates play in deciding upon the nature of crime. Frey v. Fedoruk (1950), a decision do by the Supreme coquette of Canada, is iewed as a very successful step in the courts collect for objectivity. This supposed milestone eccentric marked the end of the courts ability to invent new crimes at common law and funda noeticly appointed ultimate power of the woeful Code to the federal gove rnment. Frey was incriminate of peeping into the window of a changing woman. The courts recognized that peeping was clearly morally objectionable, but the address too historied that peeping was not otherwise criminal and not falling within any category of offences defined by the Criminal Law. It went on notwithstanding to say that if any course of conduct is now to be declare criminal, which has not up to the present time been so regarded, such declaration should be made by Parliament and not by the Courts. i This showcase essentially set the precedent that no person could be charged with an offence that was not antecedently stipulated in the Criminal Code. This case illustrates an evident shift in regards to the role judges play in the justice system however, it is capitulumable if this shift is as secure as originally perceived.Something that is often forgotten by those who stress the sovereign aspect of the criminal law is that Parliament does not have direct control ove r the enforcement of their own texts. Judges cannot directly contradict or invent new laws, but they can endlessly reinterpret them. Furthermore, in interpreting the criminal law, judges do not have control over the way in which fellow criminal justice personnel will reinterpret their interpretations.For example, due to the vagaries involved in legal expert Sopinkas ruling in R. v. Butler, criminal justice personnel have been striven dexterityary power that has resulted in the derived function and unlawful targeting of gay and lesbian sexy significant. In arguing for judicial objectivity, one could argue that judges are only allowed to interpret law in accordance the intention of Parliament when the section was enacted or amended.Judges cannot adopt the shift in single-valued function doctrine, which was explicitly rejected in R. v. Big M Drug Mart Ltd. ii However, in order of magnitude to avoid running a foul of the shifting tendency argument, judges can use vague and ind eterminate language that will only require the pauperisation for reinterpretation in the afterlife and further the use of judicial subjectivity. When interpretations are required it opens the doors to the, subconscious or conscious, writ of execution of subjective standards of morality by judges or riminal justice personnel. Essentially different judges will interpret the law in different ways, which stresses the importance for clarification and specification within the Criminal Code. It has also been argued that the decision in Frey v. Fedoruk allows for citizens to know in advance if they are committing a crime. As seen in the Butler case, many laws in the Criminal Code continue to be vague and indeterminate, requiring the need for judicial interpretations.The vagaries of the obscenity law allow judges, police and custom officers, to interpret the law in a way that may encompass stuff or actions that were not specifically stipulated under the law itself. The evolution of Cana dian obscenity law Upon examination of the progression of Canadian obscenity law it is clear that the modernized obscenity law remains riddled with some of the homogeneous problems inherent to its predecessors. The law of obscenity in Canada has its roots in English law. The 1868 decision of the House of Lords in R. v. Hicklin was the leading case and set out a visitation for obscenity.In up restraining an order for the destruction of a publication, Chief Justice Cockburn declared, I work out the analyze of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall. 1 This definition had been criticized for its disregard of serious purpose or artistic merit in the impugned solid and for its excessive dependence on subjective speculations made on the part of the trier of fact.This was the mental bear witness used in Canada un til the Criminal Code was amended in 1959 to include a definition of obscenity as the unreasonable exploitation of sex, or of sex and any one or more of crime, horror, cruelty and abandon. Canadian courts then shifted their focus from the proper application of the Hicklin test to the discretion of how the insupportable exploitation of sex is to be recognized. Brodie was the first obscenity appeal to adopt originally the Supreme Court of Canada following the amendment. Judson J. , during his explication of this ection, was conscious of the criticism that had been leveled against the Hicklin test and was ensuantly trying to avoid its downfalls. Judson J. express the view, in light of the amendment, that all the jurisprudence under the Hicklin definition is rendered obsolete and that the new definition gave the Court an opportunity to apply tests which have some certainty of meaning and are capable of objective application, which do not so much depend as before upon the idios yncrasies and sensitivities of the tribunal of fact, whether judge or dialog box2 .Two tests were purposed throughout the trial that were thought capable of objectively recognizing the undue exploitations of sex. The first test concentrate on the internal necessities of the work in question. The second test was the club standard test. He recognizes that community standards may vary from time to time, but held that thither is a general instinctive standard of decency, which prevails in any given community. What is obscene is material that offend that standard. The development of the jurisprudence post-Brodie had elaborated upon this notion of community standard. It has been said to be a general average of community thinking and feeling a subject field standard one where judges are entitled to judge for themselves, without expert raise, when this standard has been exceeded. However, a corporeal development in the test for obscenity occurred in the Supreme Court of Canadas d ecision in Towne Cinema Theatres Ltd. v. The Queen. 3 In this decision, the court stated that the community standard of tolerance is only one way in which the exploitation of sex can be determined undue. The Court recognized the imperfections of monastic order and the subsequent misfortune that the community could gestate publications that make wrong to members of society. The court went on to say that even if, at certain times, there is a coincidence between what is not tolerated and what is ill-useful to society, there is no unavoidable connection between these two concepts. 4 Thus, the legal definition of undue was made to encompass publications that were accidental injuryful to members of society and consequently society as a whole.Material was deemed harmful if it portrayed persons in a degrade or dehumanizing way. Obscenity also continued to be assessed against community standards. This test was concerned, not with what Canadians would tolerate being exposed to t hemselves, but what they would tolerate other Canadians being exposed to. It was a test concerned itself with tolerance and not taste. R. v. Butler- the current definition of obscenity. The Supreme Court of Canada made its definitive decision in R. v. Butler. The case of R. v. Butler concerned the constitutionality of the obscenity provisions (now s. 63) of the Criminal Code of Canada. The provisions were under consideration on the grounds that they infringed upon a guaranteed right to freedom of expression under s. 2(b) of the Canadian read of Rights and Freedoms. The case is monolithic in determining whether, and to what extent, Parliament can justifiably criminalize obscenity.On appeal to the Supreme Court of Canada, the following constitutional questions were raised 1. Does s. 163 of the Criminal Code violate s. 2(b) of the Charter? 2. If s. 163 of the Criminal Code violates s. 2(b) of the Charter . Can s. 163 of the Criminal be demonstrably justified under s. 1 of the Charter as a reasonable ricochet prescribed by law? Before answering the main constitutional questions, Justice Sopinka, writing for the bulk, firstly attempted to clarify and interpret what the impugned edict was intended to signify. In deciding what constitutes the undue exploitation of sex, the court examined the three workable tests used in past cases of obscenity the community standard test the degrading or dehumanizing test and the internal necessities test. The review of this jurisprudence showed that the relationship between severally of the three tests failed to be clear or specific. Sopinka divided pornography into three categories 1) explicit sex with violence 2) explicit sex without violence but which subjects people to word that is degrading or dehumanizing 3) explicit sex that is without violence and is neither degrading or dehumanizing. Sopinka used these three categories as the guidelines in determining what constitutes the undue exploitation of sex. Sopinka essentiall y merged the community standard of tolerance test together with the harm principle.The courts now need to figure out what the community would tolerate others being exposed to on the basis of the spot of harm that may flow from such exposure. Harm, in this context, signifies material that would predispose viewers to anti fond conduct. The first category of pornography was found to always constitute the undue exploitation of sex, the second category of pornography was found to sometimes constitute the undue exploitation of sex and the third category generally did not qualify to be the undue exploitation of sex. 5 Problems with the Community Standard of Tolerance testIt has been suggested that the modern obscenity test, the merger of the community standard of tolerance test and the harm principle, is liberal relative to its predecessor (the Hicklin test). On the sur present it faces to draw on the more liberal attitudes of contemporary society about sexual representation and has the flexibility to evolve with the changing norms of communities through time. However, it cannot be forgotten that the community standard test of harm is delineated on the standards held by the majority, enforcing only the majoritys view of what is harmful and obscene.The imposition of majority views on other members of society is seen as the most serious threat to liberty in a democratic state, and seems to contradict the multicultural dogma that is representative of Canadian society. Subsuming a majority analysis into the definition of obscenity, unavoidably creates prejudice against non-mainstream minority representations of sex and sexuality. Usually, the tolerance level of a community is difficult to measure, requiring the courts to essentially guess as to how much harm a community as a whole would tolerate. It was held that evidence of community standards is desirable, but not essential.The lack of proof for a community standard furthers the vulnerability of minority groups. Fund amentally, judges can provide the court with a fictional interpretation of a communitys standard of tolerance. No matter how honest such an interpretation could be, it runs the risk of exposure of being false without the judge having to formally justify his/her findings. The community standard of tolerance of any given community, Professor Ric lumbering Moon says in regards to the Butler ruling, is judicial subjectivity (value judgment) simply dressed up in the objective garb of ommunity standards. 6 Furthermore, community standards only make sense in relations to a prevailing, and generally accepted understanding of sexual morality, in which some sex is good and some is not. Not withstanding the courts best efforts to string the objective of the law as the prevention of harm, particularly of harm towards women, the underlying sexual morality and the scoop focus on straight relationships shapes the way in which the s. 163 is applied throughout the criminal justice system. It is within the context of gay and lesbian materials that the distinction between morality and harm is most difficult to adjudge, and that we can most clearly see the extent to which obscenity laws are still predicated on the legal regulation of sexual morality. Butler decision in the gay and lesbian context The picayuner Sisters look Throughout his judgment, Sopinka J. provides an implicit message for the need to protect females against male violence. A common thread weave throughout out many heterosexual relations is the idea of an aggressive and powerful male and a passive and subordinate female. therefrom, Sopinka J. s understanding of harm is set in a heterosexual framework. mirthful and lesbian sexual representations are not produced within the heterosexual framework of the more mainstream pornography to which the Butler decision addressed itself. Realistically speaking, how would men watching pictures of men having sex with men, contribute to the type of harm to women identifi ed in Butler? However, these gay and lesbian sexual representations of sexuality have been targeted, charged and found guilty pursuant to the modernized Butler test for obscenity.The gay and lesbian community have argued, that gay or lesbian sexual representations have absolutely nothing to do with the harm towards women associated with heterosexual pornography. (quote red book . pg 128 ) Interestingly, Carl Stychin, has contended, that the sexually explicit images of gay male pornography do not reinforce immemorial male sexuality, but rather directly challenge dominant constructs of masculinity by displacing the heterosexual norm. (quote) It would seem warranted to suggest that since gay and lesbian sexual epresentations do not operate within a heterosexual framework, that these images cannot and should not be measured against a heterosexual norm. The constitutionality of provisions located under the Canadian customs duty Act, who operate in accordance to Butlers definition of o bscenity, was questioned, in the context of gay and lesbian culture, in the Supreme Court of Canadas decision in Little Sisters Book and Art emporium v. Canada. This case was the culmination of several instances where customs officials had unlawfully targeted gay and lesbian sexually explicit materials.Little Sisters Book and Art Emporium carried a specialized inventory catering to the gay and lesbian community. The cut in imported 80 to 90 percent of its erotica from the United States. Consequently, the vast majority of their erotica was supersensitized to Customs censorship powers. Code 9956(a) of Schedule VII of the Customs Tariff prohibits the importation of books, printed paper, drawings, paintings, prints, photographs or representations of any kind that . . . re deemed to be obscene under subsection 163(8) of the Criminal Code. (quote little sister) The Supreme Court of Canada did acknowledge the fact that Customs officials had subjected the appellant to differential treatme nt when compared to importers of heterosexually explicit material. The treatment was dismissive of the appellants charter rights under s. 15 (1) of the Charter as they were not given the equal benefit of a fair and open customs procedure. However, the source of the s. 5(1) Charter violation was not identified as the customs legislation itself, since there is nothing on the face of the Customs legislation or in its unavoidable effects, which contemplates or encourages differential treatment based on sexual orientation. The unlawful differential treatment had been made at the administrative level in the implementation of the legislation. The court held that Parliament is entitled to proceed on the basis that its enactments will be applied constitutionally by the public service. As stated by the Court, The fact that a regulatory power lies un consummationd provides no basis in attacking the validity of the mandate that conferred it. The Court held that the Customs legislation infrin ges s. 2(b) of the Charter, with exception of the reverse onus provision in s. 152(3) of the Customs Act. However, the legislation constituted a reasonable limit prescribed by law, justified under s. 1 of the Charter. The court trusted Customs to identify and implement the needed changes, and the burden of monitoring compliance was left to future litigations. quote Osgood hall law journal) Thus, the majority absolved Parliament of any constitutional obligation to break this obviously flawed legislative regime of resile censorship. By upholding the legislation, and simultaneously affirming the differential treatment unfairly imposed on Little Sisters Book and Art Emporium by Customs, the Court has projected itself as the defender of sexual pluralism and has not done enough to reduce the likely risk that over-censorship will reoccur. unsung conception of HarmIt has been shown, most specifically in the case of Frey v. Fedoruck, that the Supreme Court of Canada has been trying to lim it the power of appointed judges and consequently reserve the power over the Criminal Code for Parliament. In the Little Sisters case the Court admittedly held that A large measure of discretion is granted in the administration of the Act, from the level of the Customs official up to the Minister, but it is well established that such discretion must be exercised in accordance with the Charter.Ideally, all criminal justice personnel should exercise discretionary power in accordance to the Charter, but whether done mistakenly or purposely this is not always the case, which has historically given reason to the clarification or amendments of the law. Since criminal justice personnel are only human, and prone to error, the use of safeguards within the criminal code, in the form of clear and definite laws, is prerequisite to protect against judicial subjectivity. The majority opinion in the Butler case, includes validation of Littler Sisters struggles and denunciates Customs discriminat ory and excessive censorship practices.Although the ruling did include positive sentiments, it ignored the possibility that the law had something to do with Customs failures. The Court disproportionately blames the acts of individual custom officers, or those process at the administrative level in the implementation of the legislation, for the over-censorship of gay and lesbian material. However, the faulty administration of the discretionary powers conferred on officials by the Act can be a symptom of the underlying root problem the vague community standard of harm test for obscenity.The Court defended their inaction on the fact that the face of the Customs legislation or in its necessary effects, does not contemplates or encourages differential treatment based on sexual orientation. Regardless of how promising a law looks on paper if it lacks consistency and objectivity in its application and demonstrates significant procedural deficiencies it should be brought into question. On a supposed quest for objectivity, Sopinka held that there should be a shift in focus from morality to harm when examination for obscenity.Harm, in this case, was defined as the risk of anti social way, (ie the mistreatment of women). Anti-social conduct for this purpose is conduct which society formally recognizes as incompatible with its proper functioning. iii Although the Supreme Court has provided us a fair amount of guidance on how the issue of obscenity is to be dealt with, it has provided a rather uncertain concept of harm that continues to give appointed judges, and in this case Customs officers, a fair amount of discretionary power and opens the doors to subjective standards of morality.The ambiguous conception of harm has already posed problems in regards to enforcement. For example, obscenity laws have adversely change those importing gay or lesbian erotica in comparison to other individuals importing like publications of heterosexual nature. iv Being a piece of legi slation that admittedly violates our right to freedom of expression, one would think that s. 163 would be held to a higher standard of clarity.Since the definition of harm is relatively vague it can unfairly persecute the gay community, holding gay pornography to a lower standard of tolerance than heterosexual pornography. During Sopinkas Charter analysis, he goes on to say that there is no need for proof of harm or evidence of a causative link between the obscene material and the feared social harm. This is because social harm is so difficult to prove or measure. On the one hand such a finding could be welcomed since the court has developed a test that is sympathetic to the inequality and oppression of women.However, on the other hand this loose standard of evidentiary burden, which the government must satisfy in order to justify its infringement of freedom of expression, together with a rather ambiguous definition of harm, raises the critical question as to what types of materials will be targeted. It is very important for the criminal code to be subject to a standard of heightened clarity and transparency (more so than the Charter), so that citizens can know in advance if they are committing a crime. Studies on the causal link between pornography and attitudinal harm In the case of R. v.Butler, when deciding the second constitutional question (s. 1 analysis), Sopinka held that the prevention of harm likely to arise from the distribution of certain obscene materials constitute a sufficiently pressing and substantial objective to warrant some limitations on s. 2(b) of the Charter. Sopinka made clear that while parliament cannot impose subjective standards of sexual morality it can impose the morality of the majority when it coincides with the morality of the charter. This can be done to maintain values integral to a democratic society. In terms of proportionally, there are three aspects.Firstly, it was asked whether there was a rational connection between the impugned measures and the objective. The courts held that it is reasonable to assume a causal relationship between the exposure to obscene material and the risk of negative attitudinal changes (i. e. harm) in the absence seizure of concrete proof. Secondly, Sopinka found that there was minimal impairment of the right to freedom of expression as the legislation aims only to restrict material that poses a risk of harm to society. Furthermore, material that has artistic merit will not be criminalized.Finally, the court found that there was a proper balance made between the effects of the limited measures and the legislative objective. It was found that the limits placed on the right to freedom of expression was not outweighed by the important legislative objective that was aimed at avoiding harm. Thus, the Court held that the prohibition against pornography contravenes the freedom of expression guarantee in section 2(b) of the Charter, but went on to hold that the section could be dem onstrably justified under section 1 of the Charter as a reasonable limit prescribed by law.The section 1 issues raised in the Littler Sisters case related to the substance of the obscenity prohibition and the procedures by which it is enforced. The former had been fully articulated and defended by the Court in the Butler ruling, so it was not surprising that the challenge to the content of the obscenity standard itself failed. The degree to which Sopinka J defended the constitutionality of s. 163 and thus the s. 1 analysis raised by the regime f Customs censorship on the avoidance of attitudinal harm is disproportionate in comparison to the likelihood that such harm genuinely exists.It is very difficult to find any proof that pornography can be the cause of attitudinal harm amongst its viewers. There have been two attempts and potential sources of such proof statistical evidence and experimental evidence. statistical evidence attempts to show a correlation between the prevalence of pornography and the incidence of violent crime. statistical evidence has been unable to establish a causal link between pornography and violence. Some look into has purported to show that many rapists report having had little exposure to pornographic material.Furthermore as technology has bring about increasingly sophisticated in recent years, there has been a dramatic increase in the handiness of pornography over the internet. Despite growing concerns, it has been proven extremely difficult to censor or determine the distribution of obscene pornographic material. Despite the probable increase in access to obscene material, the rate of sexual assault has not increased significantly more than those of other forms of crime. Experimental studies have come the closest in claiming a causal link between violence and pornography.Some work has shown that, under laboratory conditions, there may be a measurable relationship between aggressive behavior and exposure to aggressive pornogra phy. However, such experiments are inherently artificial, as the circumstances are essentially fabricated. Therefore the findings in these experiments cannot be directly transferable from the laboratory into the real world, where inhibitions and public scrutiny affect social behavior. Furthermore, not all studies focus on the negative effects of pornography on viewers social behavior.Some support the possible action that pornography can serve as a sanctuary mechanism, allowing its viewers to satisfy aggressive impulses in a non violent way. This theory, along with the theory that pornography induces aggression, has been discount and remains improvable. Although discredited, such a theory remains equally as plausible as the theory endorsed throughout the Butler case that pornography induces attitudinal harm. It is unclear as to why obscenity should be defined almost exclusively around the prevention of something that could be complete fiction.In the absence of conclusive scientifi c evidence, it could be argued that s. 163 represents and arbitrary infringement upon our freedom of expression. It is difficult to see how the court deemed the objective of the law to be pressing and substantial in the absence of demonstrable proof and in the presence of empty assumptions. In the absence of proof of harm, whether material is obscene becomes a matter of faith and not evidence. Such an ambiguous definition of harm can be understood as a disingenuous effort by the court to decide what the impugned legislation was intended to mean.It could be argued that Justice Sopinka was instead formulating his judgment in regards to what he thinks the legislation should mean now. The appellant argued that to accept the objective of the provision as being related to the harm associated with obscenity would be to adopt the shift in purpose doctrine which was explicitly rejected in R. v. Big M Drug Mart Ltd. vSopinka argues that the original purpose remains as it was in 1959 protecti on of harm caused by obscene material. However, when the legislation was first enacted, it was concerned primarily with the corruption of morals and not precisely the victimization of women. Such a vague definition of harm allows the courts to justify the infringement of a Charter right on the basis of a different argument of the time and not on the basis of why the law was created in the first place. Overemphasis placed on the protection of women The obscenity test in Butler, who adversely effected the Customs Act, seems to further reinforce womens marginalized role as crime victims as well as mens repugnant roles as crime perpetrators.Although this ruling is meant to essentially promote equality amongst men and women, it seems as though it has completely ignored the hardships existent in same sex relationships. Throughout this judgment Sopinka provides an implicit message for the need to protect females against male violence. After such an emphasis has been placed on the protecti on of women, and in the absence of conventional or homophobic morality displayed by custom officers, it is questionable as to whether s. 163 would allow pornographic material portraying explicit sex and violence against men to escape criminality.Although it is very important for the law to apply equally to all citizens, as stated in s. 15(2) of the Charter it is not unconstitutional to take affirmative action to help previously disadvantaged groups such a women. In reality women run the risk, more so then men, to be victimized because of pornography. Victims of sexually based offences are disproportionately female in comparison to male. However, the types of harm that can be aggravated by obscenity, discussed throughout the Butler case, can exist in all types of human relationships regardless of sexual orientation or the individuals involved.Gays and lesbian relationships are susceptible to the same physical, sexual and mental abuse in much the same ways that heterosexual relationsh ips do. This in essence shows that the judgment was based primarily on heterosexual norms, running the risk of ignoring other possible victims of obscenity. It is this lack of recognition of homosexuals within the leading interpretation of the obscenity law that can either cause the over-censorship or under-censorship of homosexual material, two being equally problematic to the homosexual community. Problematic categorizationIn an effort to further clarify the obscenity provisions in the Criminal Code Sopinka devised a three-tier categorization of pornographic material. Sopinka concluded that material that fell within the second category of explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing could be considered undue. The categorization of degrading and dehumanizing is elusive and vulnerable to subjective or even discriminatory evaluations. The flexibility provided in the second category can be translated into inconsistencies withi n the legal process.Providing a category that could be viewed as obscene seems to dilute what was meant to be an objective guideline to be followed when testing for obscenity. The selling of material that falls within the second category is essentially equivalent to gambling since there is no certainty as to whether the selling of such material would or would not constitute a criminal offence. One could argue that the sellers of the questionable material could themselves determine the standard of tolerance of a community in determining whether the material that they are selling is obscene.However, one persons interpretation of what the community would tolerate might be radically different from that of the courts. The potential subjectivity is suppose to be reined in by reference to community standards of tolerance. (ossgood) Since judges determine this standard on their own, in the absence of proof of such a standard, it is hard to see how they will act as a veritable constrain o f judicial subjectivity. What the current obscenity definition has trouble demarcating in obscenity as a narrow category of sexually explicit material.To remedy this situation it would have been beneficial to introduce additional categories of pornography that were more specific and detailed than the ones currently offered. Additional categories would force the court to specify what material in the second category would and would not pose a substantial risk of harm. This would have further objectified the test for obscenity because the discretion of individual trial judges would be reduced when it came to dealing with pornographic material falling within the second category.Judges and other criminal justice personnel would be required to sort material in the devised categories instead of deciding independently what they feel the community would tolerate on the basis of harm. This would also seem to provide the general population with a better understanding of lawful vs. unlawful po rnographic material. Implicit to Sopinkas categorization of pornographic material is the idea that there is a distinct difference between soft porn and hard porn when it omes to what will cause social harm. Sopinka holds throughout his judgment that the objective of s. 163 is to provide protection against what could cause the abject and servile victimization of women. He is assuming that the dissemination of soft porn will not pose the same risk of social harm to women as the categories of explicit sex with violence or explicit sex that is degrading or dehumanizing. However, any pornographic representation of women can be considered to be a systematic objectification.As Justice Gonthier wrote for the dissent of the Butler case, even if the content is not as such objectionable. the dash in which the material is presented may turn it from innocuous to socially harmful. vi Both soft porn and hard porn (all three categories) could thus contribute to womens subordination and inequality in society. It is clear that Sopinkas test for obscenity does not necessarily lock up with its purpose of protecting women from antisocial behavior and inequalities and could serve as evidence of an appeal to conventional standards of sexual morality.Modest and restrained depictions of sexual legal action were permitted in accordance to an implicit hierarchy of conventional moral values and not on the basis of harm. (does that make sense? ) The internal necessities test can also be questioned in terms of Sopinkas harm based obscenity test. Pornographic representation found in art and literature can be just as harmful as what is found in, what is now understood to be, pornography. Therefore, it seems as though material that could be dehumanizing and degrading and thus cause significant social harm could pass the test for obscenity devised by the court.By not leaving behind the view that representations of sex are perverting if not redeemed by art or some other higher social purpos e, the definition of obscenity remains vague and open ended. The Customs administration of the obscenity prohibition at the border and the general over-censorship of homosexual pornographic material, confirm that the Butler definition of obscenity is open to multiple interpretations and makes agency for the affirmations of old prejudices. In the Littler Sisters ruling, the Court denied that these problems existed, and instead relied upon an idealized portrait of the community standard test that will llegedly force criminal justice personnel towards judicial objectivity. It has been proven that the community standard test is based primarily on the views of the majority and does not necessarily constitute a guarantee of tolerance for minority expression. In actuality society, while becoming more liberal, is still deeply entrenched with prejudices against minorities oddly throughout the criminal justice system, stressing the need for clear and definitive language used within the Crim inal Code and court process.