Butler (1992)
-Impugned:  s. 163 of Crim Code:  prohibits sale of obscene materials, i.e. where a dominant characteristic is the undue exploitation of sex, or sex and crime, horror, cruelty and violence.
-Butler:  convicted of selling & renting hard core video & magazines.  Butler's Argument:  s. 163 violates s. 2(b) of Charter.
-Trial judge:  obscenity restricted to materials that depict sex & cruelty, lack of consent, or dehumanization.  Convicted on 8 counts only (he'd been charged with over one hundred offences)
-Cour of Appeal:  All of S. 163 is a reasonable limit.  Convict on all counts, not just 8.
-SCC (unanimous 9j decision):  clarified meaning of obscenity.   S. 163 infringed 2(b), but SCC’s dn of obscenity can pass the Oakes test.  Butler to be tried again.

-Sopinka (+6):  The test for obscenity:  Is exploitation of sex “undue” according to “community standards test”?  This is not what Can’s would tolerate for selves, but what they’d tolerate others being exposed to re harm to society.
-Consent is important, but not necessarily determinative.
-Re works of art: “internal necessities” test:  is the material required for serious treatment of a theme?
“reasonable person” test
-sex & violence:  nearly always undue exploitation
-sex that’s dehumanizing: undue if risk of harm substantial
-sex that’s not violent or degrading is tolerated unless it involved children
-“internal necessities” test: judge must determine whether material is really necessary, or the work is an excuse for exploitation.  If in doubt, err on side of fr of expression
Oakes test passed.
I:  Objective of preventing harm is pressing & substantial
II:  a) rational conn between supressing obscene mat’s and preventing harm.  Community standards test is sufficiently clear.
    b)  rights minimally impaired.  Only potentially harmful material caught, and there’s an internal necessities test
    c)  good outweights harm

Dissenters:  (L’Herueux-Dube & Gonthier):  generally agree with Sopinka, but think that sometimes materials that don’t combine sex and violence, or sex considered dehumanizing, can be obscene because there’s a community consensus that the materials may result in harm
by contributing to the “deformation of sexuality”

RJR-MacDonald v. AG Can (1995)

-Impugned:  fed Tobacco Products Control Act, which regulated tobacco advertising
-div of powers issue:  valid legis under crim law power
-Charter issue:  5-4 legislation is a violation of 2(b) of Charter.
-All 9 judges agree that the legis violates 2(b).  Disagreed over application of Oakes test.
-Majority:  Part I:  objective is to prevent Can’s from being persuaded by tob ad, and disc people who see package.
        Important objectives, so Pt I passed.
-Part II:
    a) rational connection:  social science evidence not conclusive (dissenters disagreed)
    b) minimal impairment:  no.  No evidence to show that less obtrusive measures just as effective.
    c) harm outweighs good

Dissenters:  (La Forest, L’Heureux-Dube, Gonthier, Cory):  The legislation passes the Oakes test.  The courts must defer to the policy choices of legislatures in cases like this where leg. is trying to prevent something extremely harmful.  Oakes test must be applied less strictly.  Courts should not second-guess legislative policy choices.  Following SCC decision:  Parliament enacted new tobacco advertising legislation that complied with SCC decision.  Janet Hiebert, who wrote Charter Conflicts (2002):  Parliament didn’t need to defer.  Could have come back with a more persuasive case, as in the rape shield issue.