Obscenity Law

The vague, subjective, and indeterminate nature of Canadian obscenity law has been called â€Å"the most muddled law in Canada. † Recognizing that consistency and objectivity are important aspects in the running of any successful legal system, the Supreme Court of Canada has attempted to systematically clarify and modernize obscenity law. The ruling in R. v. Butler marked the transformation of the law of obscenity from a â€Å"moral-based† offence to a â€Å"harm-based† offence. The courts are now asked to determine, as best they can, what the community will tolerate others being exposed to, on the basis of the degree of harm that may flow from such exposure. Harm, in this context, means the predisposition to antisocial conduct. When probing beyond superficial appearances, it is clear that the modernizing moves made by the Canadian judiciary, in introducing the community standard of harm test to enforce obscenity law, are mere rhetorical covers for the continued protection of conventional morality. The determination of â€Å"community standards† is left primarily to the subjective judgment and hunches of criminal justice personnel. In this context, the standard to which obscenity laws are based can be uncertain and ill defined, 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 not clearly demarcated in the first place. This is a disturbing state of affairs for any criminal offense. This essay will firstly demarcate the roles in which judges currently play in deciding upon the nature of crime. Secondly, with the use of previous rulings on obscenity by the Supreme Court of Canada, the evolution of Canadian obscenity law will be analyzed. Thirdly, the involvement of the community standard of tolerance within the current obscenity definition will be flagged as prejudiced against non-mainstream minority representations of sex and sexuality. Fourthly, the Butler decision will be analyzed within the gay and lesbian context. Finally, the three inherent flaws of the current Butler definition of obscenity will be discussed; the vague definition of harm, the problematic categorization of â€Å"degrading and dehumanizing sex† and the overemphasis placed on heterosexual norms. The current roles in which judges play in deciding upon the nature of crime. Frey v. Fedoruk (1950), a decision made by the Supreme Court of Canada, is iewed as a very successful step in the courts’ quest for objectivity. This supposed milestone case marked the end of the courts’ ability to invent new crimes at common law and essentially appointed ultimate power of the Criminal Code to the federal government. Frey was accused of peeping into the window of a changing woman. The courts recognized that peeping was clearly morally objectionable, but the Court also noted that peeping was â€Å"not otherwise criminal and not falling within any category of offences defined by the Criminal Law. It went on further to say that â€Å"if any course of conduct is now to be declared criminal, which has not up to the present time been so regarded, such declaration should be made by Parliament and not by the Courts. â€Å"[i] This case essentially set the precedent that no person could be charged with an offence that was not previously 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 questionable if this shift is as substantial 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 over 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 Justice Sopinka’s ruling in R. v. Butler, criminal justice personnel have been given discretionary power that has resulted in the differential and unlawful targeting of gay and lesbian pornographic material. 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 purpose doctrine, which was explicitly rejected in R. v. Big M Drug Mart Ltd. [ii]† However, in order to avoid running a foul of the shifting purpose argument, judges can use vague and indeterminate language that will only require the need for reinterpretation in the future and further the use of judicial subjectivity. When interpretations are required it opens the doors to the, subconscious or conscious, implementation 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 customs officers, to interpret the law in a way that may encompass material or actions that were not specifically stipulated under the law itself. The evolution of Canadian 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 same 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 test for obscenity. In upholding an order for the destruction of a publication, Chief Justice Cockburn declared, â€Å"I think the test 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. â€Å"[1] This definition had been criticized for its disregard of serious purpose or artistic merit in the impugned material and for its excessive dependence on subjective speculations made on the part of the trier of fact. This was the test used in Canada until the Criminal Code was amended in 1959 to include a definition of obscenity as â€Å"the undue exploitation of sex, or of sex and any one or more of crime, horror, cruelty and violence. † Canadian courts then shifted their focus from the proper application of the Hicklin test to the understanding of how the â€Å"undue exploitation of sex† is to be recognized. Brodie was the first obscenity appeal to come before 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 subsequently trying to avoid its downfalls. Judson J. expressed 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 â€Å"an opportunity to apply tests which have some certainty of meaning and are capable of objective a pplication, which do not so much depend as before upon the idiosyncrasies and sensitivities of the tribunal of fact, whether judge or jury†[2] . Two tests were purposed throughout the trial that were thought capable of objectively recognizing the â€Å"undue† exploitations of sex. The first test focused on the â€Å"internal necessities† of the work in question. The second test was â€Å" the community standard test. † He recognizes that community standards may vary from time to time, but held that there 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 â€Å" community standard. â€Å"It has been said to be: a general average of community thinking and feeling; a national standard; one where judges are entitled to judge for themselves, without expert evidence, when this standard has been exceeded. † However, a substantial development in the test for obscenity occurred in the Supreme Court of Canada’s decision in Towne C inema Theatres Ltd. v. The Queen. [3] In this decision, the court stated that the â€Å"community standard of tolerance† is only one way in which the exploitation of sex can be determined â€Å"undue. The Court recognized the imperfections of society and the subsequent possibility that the community could tolerate publications that cause harm to members of society. The court went on to say that â€Å" even if, at certain times, there is a coincidence between what is not tolerated and what is harmful to society, there is no necessary connection between these two concepts. † [4] Thus, the legal definition of â€Å" undue† was made to encompass publications that were harmful to members of society and consequently society as a whole. Material was deemed harmful if it portrayed persons in a â€Å"degrading or dehumanizing† way. Obscenity also continued to be assessed against â€Å" community standards. † This test was concerned, not with what Canadians would tolerate being exposed to themselves, 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 Charter of Rights and Freedoms. The case is monumental 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 limit prescribed by law? Before answering the main constitutional questions, Justice Sopinka, writing for the majority, firstly attempted to clarify and interpret what the impugned legislation was intended to signify. In deciding what constitutes the â€Å"undue† exploitation of sex, the court examined the three workable tests used in past cases of obscenity: the â€Å" community standard test†; the degrading or dehumanizing† test; and the â€Å" internal necessities test. The review of this jurisprudence showed that the relationship between each of the three tests failed to be clear or specific. Sopinka divided pornography into three categorie s: 1) explicit sex with violence; 2) explicit sex without violence but which subjects people to treatment 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 essentially 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 degree of â€Å"harm† that may flow from such exposure. Harm, in this context, signifies material that would predispose viewers to antisocial 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 test: It 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 surface it seems 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 majority’s 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 â€Å"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. Fundamentally, judges can provide the court with a fictional interpretation of a community’s standard of tolerance. No matter how honest such an interpretation could be, it runs the risk of being false without the judge having to formally justify his/her findings. The community standard of tolerance of any given community, Professor Richard Moon says in regards to the Butler ruling, is â€Å"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 court’s best efforts to cast the objective of the law as the prevention of harm, particularly of harm towards women, the underlying sexual morality and the exclusive focus on heterosexu al 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 sustain†, 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 Littler Sisters Case: Throughout his judgment, Sopinka J. provides an implicit message for the need to protect females against male violence. A common thread woven throughout out many heterosexual relations is the idea of an aggressive and powerful male and a passive and subordinate female. Therefore, Sopinka J. ’s understanding of harm is set in a heterosexual framework. Gay 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 identified in Butler? However, these gay and lesbian sexual representations of sexuality have been targeted, charged and found guilty pursuant to the â€Å"modernized† Butler test for obscenity. The gay and lesbian community have argued, â€Å"that gay or lesbian sexual representations have absolutely nothing to do with the harm towards women associated with heterosexual pornography. â€Å" (quote red book . pg 128 ) Interestingly, Carl Stychin, has contended, that the sexually explicit images of gay male pornography do not reinforce patriarchal 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 Act, who operate in accordance to Butler’s definition of obscenity, was questioned, in the context of gay and lesbian culture, in the Supreme Court of Canada’s decision in Little Sisters Book and Art Emporium v. Can ada. 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 store imported 80 to 90 percent of its erotica from the United States. Consequently, the vast majority of their erotica was susceptible to Customs censorship powers. Code 9956(a) of Schedule VII of the Customs Tariff prohibits the importation of â€Å"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 treatment when compared to importers of heterosexually explicit material. The treatment was dismissive of the â€Å" appellants’ charter rights under s. 15 (1) of the Charter as they were not given the equal â€Å"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 necessary 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 â€Å"Parliament is entitled to proceed on the basis that its enactments will be applied constitutionally by the public service. As stated by the Court, â€Å"The fact that a regulatory power lies unexercised provides no basis in attacking the validity of the statute that conferred it. † The Court held that the Customs legislation infringes 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 ameliorate this obviously flawed legislative regime of border 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. Vague conception of Harm It has been shown, most specifically in the case of Frey v. Fedoruck, that the Supreme Court of Canada has been trying to limit 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 â€Å"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 necessary to protect against judicial subjectivity. The majority opinion in the Butler case, includes validation of Littler Sister’s struggles and denunciates Custom’s discriminatory and excessive censorship practices. Although the ruling did include positive sentiments, it ignored the possibility that the law had something to do with Custom’s failures. The Court disproportionately blames the acts of individual custom officers, or those functioning 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 â€Å"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 testing for obscenity. Harm, in this case, was defined as the risk of â€Å"anti social behavior,† (ie the mistreatment of women). â€Å"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 ambiguous 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 affected those importing gay or lesbian erotica in comparison to other individuals importing comparable publications of heterosexual nature. [iv] Being a piece of legislation 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 Sopinka’s 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 â€Å"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 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 demonstrably 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 actually 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 research has purported to show that many rapists report having had little exposure to pornographic material. Furthermore as technology has become increasingly sophisticated in recent years, there has been a dramatic increase in the availability of pornography over the internet. Despite growing concerns, it has been proven extremely difficult to censor or detect the distribution of â€Å"obscene† pornographic material. Despite the probable increase in access to â€Å"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 pornography. 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 viewer’s social behavior. Some support the theory that pornography can serve as a safety 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 discredited 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 scientific 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 â€Å"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. â€Å"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. † [v]Sopinka argues that the original purpose remains as it was in 1959: â€Å"protection 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 women’s marginalized role as crime victims as well as men’s 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 protection 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 relationships 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, both being equally problematic to the homosexual community. Problematic categorization: In 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; â€Å"explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing† could be considered undue. The categorization of â€Å"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 within the legal process. Providing a category that â€Å"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 person’s interpretation of what the community would tolerate might be radically different from that of the courts’. â€Å" The potential subjectivity is suppose to be reined in by reference to â€Å" 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 legitimate constrain of 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 pornographic material. Implicit to Sopinka’s 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 â€Å" 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 ob jectification. As Justice Gonthier wrote for the dissent of the Butler case, â€Å"even if the content is not as such objectionable†¦. the manner 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 women’s subordination and inequality in society. It is clear that Sopinka’s 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 activity were permitted in accordance to an implicit hierarchy of conventional moral values and not on the basis of harm. (does that make sense? ) The â€Å"internal necessities test† can also be questioned in terms of Sopinka’s 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 bad if not redeemed by art or some other higher social purpose, 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 room 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 â€Å"guarantee of tolerance for minority expression†. In actuality society, while becoming more liberal, is still deeply entrenched with prejudices again st minorities especially throughout the criminal justice system, stressing the need for clear and definitive language used within the Criminal Code and court process.