-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)
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.