R. v. Butler

Section 163 of the Criminal Code of Canada criminalized the creation, publication, distribution, and sale of obscene materials. Obscenity was defined in § 163(8) as the undue exploitation of sex involving crime, horror, cruelty, and violence. Donald Victor Butler (defendant) owned Avenue Video Boutique, a store that sold and rented pornographic videotapes and magazines. In 1987 Butler was charged with hundreds of violations of § 163 for possessing and selling obscene material. The trial court convicted Butler on eight counts and acquitted Butler on the remaining charges. In making its decisions, the trial court concluded that obscene material was protected by the freedom of expression guaranteed under § 2 of the Canadian Charter of Rights and Freedoms (the charter). Section 1 of the charter allows freedoms included in the charter, including the freedom of expression, to be reasonably limited. The trial court held that only obscene material that combined sexual acts and violence or cruelty could be limited by § 1. The Canadian government (plaintiff) appealed the acquittals, and the Manitoba Court of Appeal convicted Butler on the remaining counts. The court of appeal upheld the definition of obscenity from § 163(8), finding that all of the material contained in the definition could be regulated under § 1. Butler appealed, arguing that the definition of obscenity contained in § 163(8) violated the charter.