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“Governing Obscenity and Indecency in Canada”

Richard Jochelson and Kirsten Kramar

Obscenity (sexually explicit expression) and indecency (sexually explicit conduct) have

long been subject to criminalization under Canadian law. Beginning with the decision in

R v Hicklin (1868) and up to its most recent decision in R v Labaye (2005), the Supreme

Court of Canada has endeavoured to construct a “harm-based” test for the courts to

adjudicate what counts as obscene expression and/or indecent conduct and should

therefore be subject to criminalization.

The decision of whether to allow or censor obscene expression or indecent

behaviour has been a hotly contested political issue in Canada, especially in the early

1990s. At that time the obscenity law was being challenged on constitutional grounds in

R v Butler (1992). This debate was both academic and political because it focused on the

feminist engagement with the state, and because the stakes were very high for sexual

minorities who had historically been the target of police harassment. At the crux of the

debate was the value of promoting equality more broadly for women as a homogeneous

group while at the same promoting sexual freedom for queer minorities. Because queer

minorities had historically been subject to criminal prosecution by the state there was

considerable concern on the part of that community about relying on law to achieve

sexual freedom in the name of social justice. Nevertheless, anti-censorship feminists

seeking to promote the value of sexual freedom framed their political objectives in the

language of liberalism. This was an argument that reached its apex in the context of the

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Little Sisters case (2001) where the Court upheld the legitimacy of Customs regulations

(save for reverse onus provisions) which applied the Butler test of tolerance in the context

of the importation of sexually explicit expression (though the Court did find that Customs

officials behaved in a manner that infringed the equality rights of the queer book store)

(Busby 2001). Thirteen years later, in R v Labaye (2005), the Supreme Court of Canada

revisited the obscenity and indecency issue. This time the Court ruled on the question of

whether a Montréal sex club, Le loft de l’Orage: lounge échangiste (‘l’Orage’, translated

into English as The Storm Club), violated the Canadian bawdy house provision of section

210(1) of the Criminal Code for “indecency.” Owned and operated by Jean-Paul Labaye,

l’Orage was a sex club that charged admission fees for swingers’ sex parties and other

themed sex parties such as “Voyeur – Exhibitionist” sex play on Fridays and Fetish Play

Parties, which included BDSM, on Saturdays. In its acquittal of Labaye, the Court

reconfigured the existing “community standards of harm” test for obscenity and

indecency (Jochelson 2009).

In this chapter, we use a governmentality lens (Foucault 1991; see also the

“Theoretical Excursions” chapter) to examine the successive rationalities adopted by the

Supreme Court of Canada to justify harm-based tests for criminality in respect of sexual

expression and conduct, most recently evidenced in the swinger club case of Labaye.

Adopting the Governmentality Approach

The concept “governmentality” — or “governmental rationalities” — refers to the ways

of thinking and styles of reasoning that are embodied in particular sets of practices and

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provides a framework for critique that brings into focus the analytics of government to

“ask questions about how we govern and the conduct of both the governed and the

governors” (Dean 1999: 28). One of the central and critical claims of the governmentality

literature “is the idea that we are ‘governed’ through and by means of our ‘freedom’”

(Garland 1997: 196). Our aim is therefore to produce an “archaeology of legal

knowledge” that illustrates connections between juridical mentalities from one decade to

the next as successive courts work out their justifications for deeming certain kinds of

sexually explicit expression and conduct criminal. In this way we hope to shed new light

on the ways in which progressive movements (feminist or queer) are governed through

their own freedom(s) as they adopt these rationalities as sources of power in their

struggles for sexual autonomy and freedom.

Our project here is modest in that it examines obscenity and indecency

jurisprudence as it has operationalized political power understood as governmental

rationality. As Mitchell Dean (1999: 33) notes, mentalities of government invariably

presuppose an end or utopian goal of the type of society which is to be achieved.

Examining the mentalities that underpin these utopian aims brings into focus “the forms

of identity promoted and presupposed by various practices and programmes of

government” (Dean 1999: 32). Not to be confused with real subjects, subjectivity, or

subject positions, the technique(s) for governing obscenity and indecency “elicit,

promote, facilitate, foster and attribute various capacities, qualities and statuses to

particular agents” (Dean 1999: 32). Following Michel Foucault (1980, 1991), ours is a

critique of political reason that seeks to understand “the conduct of conduct.”

One of the key strengths of governmentality analyses is their ability to render

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visible not only neo-liberal governing rationalities but also other kinds of government

(conservative or communitarian) that can operate hand-in-glove with neo-liberalism. As

Nikolas Rose, Pat O’Malley, and Mariana Valverde (2009: 21) note, “To describe certain

techniques or even programs as neo-liberal indicates their lineage and provides a point of

family resemblance with other postsocial governance.” Here we examine the rationalities

provided by the courts to the state to justify criminalization of certain sorts of sexually

explicit expression and conduct. Moreover, by providing an analytics of government our

aim is to avoid global or radical prescriptive arguments for social change in one particular

direction or another (Dean 1999). We understand our work as criticism in the

Foucauldian sense, rather than critical in the various iterations of neo-Marxism (critical,

feminist, anti-racist, etc.), because this approach “rejects certain formulations that suggest

that the point of doing analysis is to distinguish between good or legitimate forms of

government and bad or illegitimate ones, or to distinguish between what is good within

regimes of government and what is bad within them” (Dean 1999: 35) for the purpose of

promoting activist programmes. Instead, the objective of criticism is to think about the

way we govern and are governed by making explicit the forms of rationality that

underpin practices of government and to remove the taken-for-granted character of any

form of “government” that seeks to produce particular social or political outcomes or

objectives.

Most importantly the governmentality approach enables us to consider the effects

of particular sets of prescriptive arguments (such as those offered by various feminist

arguments for social change) in producing contradictory and often unintended

consequences with particular kinds of regulatory effects. This approach is particularly

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useful for considering the ramification of using particular arguments or concepts (such as

emancipation, equality, liberty, or freedom) to advance particular regimes of governing.

To use the example offered by Dean (1999: 36-37):

By making clear what is at stake when we try to govern in a particular way and

employ certain ways of thinking and acting, an analytics of government allows us

to accept a sense of responsibility for the consequences and effects of thinking

and acting in certain ways.… By noting that notions of ‘empowerment’ are

capable of being used by very different political stances and are themselves

imbricated in definite sets of power relations, we produce a certain discomfort for

the advocates of such notions of all political persuasions, particularly those who

imagine themselves to be standing outside relations of power.

In other words, there are no political programmes that stand outside power relations. We

therefore must attend to what Dean (1999: 37) argues is the question offered by Foucault

about what sort of work is accomplished through an analytics of government approach:

Analytics of government concern the question of how governmental practices,

including practices of self-government, form and increase the capabilities and

autonomy of individuals and collectives and how they also lead to what

[Foucault] calls an ‘intensification of power relations’. By becoming clear on how

regimes of practices operate, we become clear on how forms of domination,

relations of power and kinds of freedom and autonomy are linked, how such

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regimes are contested and resisted, and thus how it might be possible to do things

differently.

In this respect, the governmentality approach may be at odds with insurgent aims

and social justice projects (such as those advanced by the various kinds of feminist

arguments for empowerment or other kinds of revolutionary or emancipatory

programmes for social change) insofar as they advance proscriptive programmes whilst

ignoring the logic and power effects of their own governmental objectives. When

progressive or emancipatory rationalities are disciplinary, they often result in the

solidification of governmental structures that are difficult to untangle once established

(for example, the feminization of the state and some of those criminal justice policies

aimed at addressing violence against women that empowered the state apparatus). In

these terms, we view the juridical test established in Labaye (2005) as the evolution of a

normalizing political strategy wherein private/public sexual relations are governed

through those norms that make up the “properly functioning society.” Viewed from this

vantage point, each iteration of the harm-based test(s) are examples of what Zigmund

Bauman (2000: 24) describes as the imposition of a norm that reflects a model of order

that is projected onto human conduct: “the norm tells people what it means to behave in

an orderly fashion in a well-ordered society — it translates, so to speak, the concept of

order into the language of human choices.”

7

Obscenity and Indecency: Tracking Harm through Discourse of the Supreme

Court of Canada

Four distinct phases of the Supreme Court of Canada’s operationalization of a harm

technology for regulating sexually explicit material and sexual practices are mapped out

here: (1) the Hicklin era (1868-1962); (2) the community standards era (1962-1992); (3)

the community standards of tolerance for harm era (1992-2005); and (4) the political

harm era (2005-present).

1) The Hicklin Era (1868-1962)

In Canada, both obscenity and indecency, despite having undergone several discursive

shifts, ultimately derived their content from moral judgements about “sexual danger.”

The earliest juridical common law obscenity test was established in Hicklin (1868) and

was concerned with the corruption of morals, particularly among the “weak minded.”

The court’s decision was not concern for the members of the upper class who might take

possession of obscene materials. Rather, it was an attempt to regulate the “dangerous

classes” — the lower classes, men, the young, and the uneducated; that is, those who

were constitutionally unable to resist the sexually explicit material’s influences (Cossman

et al. 1997: 12; Johnson 1995: 43-45). The test asked “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 the publication of this sort is likely to fall”

(Hicklin 1868: 373). Criminal regulation was thus justified on grounds of both individual

and societal protection from moral harm.

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Following this codification of obscenity, only five Canadian obscenity cases were

reported between 1900 and 1940, all of which followed the Hicklin precedent (Johnson

1999: 294). Pornography was seen as a vice that needed to be controlled, like drugs or

alcohol, because consumption by the “morally inferior” lower classes would endanger the

proper functioning of society. This reading of obscenity would protect the nuclear family

unit and also reduce criminality among the “dangerous classes.”

2) The Community Standards Era (1962-1992)

In R v Brodie (1962), the Supreme Court introduced the community standards test in the

prosecution of D.H. Lawrence’s classic of English literature, Lady Chatterley’s Lover,

shortly after the enactment of what is now section 163(8) of the Criminal Code. Here the

Court started to appeal to positivist research in the human sciences as a technique for

determining tolerance for harm by the community. Whereas the Hicklin Court authorized

the upper classes to proscribe access to sexually explicit materials on the basis of their

own moral judgement of others’ corruptibility, the Brodie Court envisioned “the

community” as a whole participating in determinations of harm. This provides a nominal

space for the use of empirical evidence as to what “the community” would tolerate others

being exposed to in relation to sexual danger. However, in practice, this work was done

by the courts rather than “the community.” Implicit in the test is the notion that the

judiciary represents the view of “the community.” In this regard, the technique for

constituting what kinds of sexually explicit materials are harmful to society is not much

different from the rationale underpinning the Hicklin test, only now the courts appeal to

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the fantasy of a tolerant or intolerant “community.” Later, the community standards test

of tolerance would serve to reinforce values that were supportive of what the Court

imagined members of society view as “normal”: heterosexual, middle class, and male

values (Cossman 1997: 135). This reinforcement occurred despite the decision in

Dominion News and Gifts (1964), which attempted to avoid a “subjective approach, with

the result dependent upon, and varying with, the personal tastes and predilections of the

particular Judge who happens to be trying the case” (116). According to Judson, J., the

best arbiter of community standards was not the judiciary but the jury: “There does exist

in any community at all times — however the standard may vary from time to time — a

general instructive sense of what is decent and what is indecent, of what is clean and

what is dirty, and when the distinction has to be drawn, I do not know that there is any

better tribunal than a jury to draw it” (116). In practice, few, if any, obscenity trials were

held before juries.

These efforts to cloak the community standards test in objectivity were further

refined and reinforced in R v Towne Cinema Theatres Ltd (1985). There, the Court

underscored the importance of liberal tolerance towards others to avoid projecting “one’s

own personal ideas of what is tolerable” (Towne 1985: para. 33). This development

suggested that the judiciary could infer the standard from their own knowledge of

Canadian attitudes towards sexuality. Additionally, the legal definition of “undue

exploitation” shifted. Sex was exploitative when it was coupled with violence; a liberal

harms-based test of obscenity was emerging (Johnson 1999: 296). In the post-Charter

era, the terms “corruption” and “degradation” of morals were transformed into the liberal

legal language of harm to society.

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3) The Community Standards of Tolerance for Harm Era (1992-2005)

The community standards test of tolerance for undue exploitation of sex causing harm

was refined in R v Butler (1992). The events precipitating the Butler case began in August

1987 when Winnipeg police seized the entire inventory of a pornography video store

owned by Donald Victor Butler who, along with an employee, was charged with about

250 violations of the Criminal Code for possessing and exposing “obscene” material for

the purposes of distribution and sale. Butler was subsequently convicted on eight charges

and acquitted of all remaining charges. In 1989, following the Crown’s appeal of this

ruling, the Manitoba Court of Appeal overturned the original decision and convicted

Butler on all counts. Butler’s lawyers appealed to the Supreme Court, arguing that section

163(8), the obscenity section of the Criminal Code, infringes on freedom of expression

and thereby violated section 2(b) of the Charter, which guarantees “freedom of thought,

belief, opinion and expression, including the freedom of the press and other media of

communication.” Butler’s store was a run-of-the-mill Adult Video store and contained

hard-core pornographic videos, books, and magazines. The materials in question were

typical of what was available on the pornographic market. Because the Supreme Court

was considering the constitutionality of the Criminal Code provision at issue, the Court

had to consider which types of pornography could be justifiably suppressed while at the

same time giving due consideration to the values of free speech under the Charter.

Finding the provision to be a justifiable infringement of the freedom of expression of the

aggrieved video store owner, the Court rejected the ruling by the Court of Appeal,

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reinterpreted section 163(8) of the Criminal Code, and ordered a new trial for Butler

(Johnson 1995: 58).

In Butler (1992) the Supreme Court of Canada significantly clarified the common

law definition of obscenity for the purposes of criminal liability and set out a three-tiered

test for determining which materials would fail the community standards of tolerance for

undue exploitation/harm test which flowed from the Court’s interpretation of the pre-

Charter case law. The three tiers were: (1) explicit sex with violence; (2) explicit sex

without violence but which subjected people to treatment that was degrading and

dehumanizing; and (3) explicit sex without violence that was neither degrading nor

dehumanizing that did not involve children (Butler 1992: 484), with only the first two

counting as “obscene” for legal purposes. The grounds set out by the Court for criminal

liability were firmly linked to harm, and the risk of harm, to the proper functioning of

society.

The Court advanced the notion that the community would not tolerate the undue

exploitation of sex because such exploitation caused harm to the participants and to men

and women more broadly as citizens of a liberal democracy who ought to be protected

from such harm. Harm in this context ran a broad spectrum — from harm to those who

participate in making pornography to the harms of degradation and dehumanization that

may result from the promulgation of pornography throughout society. Most notably, the

Court recognized that harm could include harms to equality, guaranteed under section 15

of the Charter (Butler 1992: 479).

According to the Butler Court’s post-Charter rationale, the impact of obscenity on

society leads to abuse, harm, and risk of harm (to both women and men as individuals),

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which interfered with the proper functioning of society. Criminalization was therefore

justified to prevent harm to political values such as equality, thereby ensuring society’s

proper functioning. In relation to social cohesion, harm to equality resulting from

exposure to violent and degrading pornography was flagged as one element justifying

state action that infringed upon freedom of expression. 1

Between 1992 when the Supreme Court of Canada addressed the constitutionality

of the obscenity provision in R v Butler and 2005 when Labaye was considered, there

were few opportunities for the Court to rule directly on the issue of criminal liability for

harm for obscenity, notwithstanding the fifteen-year court battle by the Vancouver-based

gay and lesbian bookstore, Little Sister’s Book and Art Emporium, to win the legal right

to freedom from discriminatory censorship practices by Canada Customs. In Little Sisters

and in Butler, the Court only ever delivered constitutional opinions on whether a criminal

provision met Charter reasonableness standards. On the other hand, in the thirteen years

following the Butler decision, the Supreme Court of Canada addressed the issue of

criminal liability in the context of criminal indecency five times (Tremblay 1993; Mara

1997; Blais-Pelletier 1999; Labaye 2005; Kouri 2005). In these cases, the

operationalization of the community standards of tolerance test for harm would occur in

the context of the indecency provisions of the Criminal Code; that is, where bawdy

houses were being run for the purposes of indecency or where indecent performances

were being held.

In Tremblay (1993) the Court considered whether the accused were running a

common bawdy house where nude dancers performed in individual cubicles for clients.

Here, the Court extended the Butler test of harm for obscenity to include harm from

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indecency and concluded that “harm in this context means that it predisposes persons to

act in an anti-social manner as, for example, the physical or mental mistreatment of

women by men, or, perhaps what is debatable, the reverse. Anti-social conduct for this

purpose is conduct which society formally recognizes as incompatible with its proper

functioning” (para 58, citing Butler 1992: 485). However, because the Court concluded

that the acts took place in private and included no physical contact or potential risk for

communication of sexual disease, there was no harm or risk of harm to justify state

intervention (Tremblay 1993: para 88). Nevertheless, the notion that criminal law can

regulate potential harm emerges.

In Mara (1997) the Court considered whether sexual performances, for a fee,

were indecent. The sexual acts targeted for criminalization were lap dancing intermingled

with conduct ranging from breast fondling to cunnilingus. The relevant social harm

considered by the Court was the attitudinal harm suffered by those watching the

performances as perceived by the community as a whole (Mara 1997: para 34). The

ostensibly more public nature of the sexual acts coupled with physical contact from the

dancers were distinguished from those indecency cases that were seen as being more

private. The Court’s perception of the sexual conduct being “public” rather than “private”

triggered both the harm and risk bells in relation to the risk of public lap dancing

engendering anti-social attitudes that cause harm to the proper functioning of society. The

women’s working conditions (potential direct harm to actual persons) were irrelevant

from the perspective of this governmental rationality and the focus was instead placed

upon the negative effects of public sex to provoke anti-social behaviour in men that

would, in turn, promote societal harm (Johnson 1999: 311).

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In Little Sisters (2000), in the obscenity context, the Court would return, once

again, to the community standards of tolerance of harm test. Here, the Court considered

the state’s power to limit the importation of sexually explicit materials it considers

harmful to society (Little Sisters 2000: para 3). The case dealt with the discriminatory

seizure of erotica, sex education materials, anthologies, and essay collections imported by

the Vancouver- based gay and lesbian bookstore, Little Sisters. The bookstore owners

argued that the harm-based interpretation of obscenity jurisprudence ought not to apply to

gay and lesbian erotica in the same way it does to heterosexual erotica. They argued that

the harms-based community standards test for tolerance was “majoritarian” and more

likely to be viewed by “the community” as “degrading and dehumanizing” and therefore

“harmful to society” on the basis of homophobic prejudice towards anal intercourse

between men (Little Sisters 2000: 53 and 60). Queer legal theorists challenged the

community standards test on the grounds that the majoritarian logic of community would

ensure that minority values, even if heard and respected, would be rejected by the courts.

As such, the harms-based community standards test was seen to provide no protection for

minority rights (including equality rights) when they were at odds with national standards

of tolerance (read as homophobic because community standards are based on

heterosexual norms) (Little Sisters 2000: para 55, citing Cossman 1997: 107-8).

The Court disagreed that the obscenity jurisprudence ought not to apply to gay

and lesbian erotica (Little Sisters 2000: para 42), refusing to accept that queer sexual

expression created by and for the queer community was distinct from heterosexual sexual

expression or that the obscenity section of the Criminal Code would be applied

differently to gay and lesbian sexually explicit materials by the state. The Court’s view

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was that its aim in Butler was to prevent harm, and that the state “is indifferent to whether

such harm arises in the context of heterosexuality or homosexuality” (Little Sisters 2000:

para 44). Thus, from the Court’s perspective, the harm test did not work against the

interests of “homosexuals” because they too were members of society who benefitted

from state intervention to protect society from harm (Little Sisters 2000: para. 58). Harm

to society thus became a more abstract value replacing majoritarian community standards

values because it no longer required even cursory judicial consideration of contextualized

sexual identity or difference.

With respect to queer sado-masochism, one of the issues in Little Sisters, it was

the question of sexual difference that was at issue for the Women’s Legal, Education, and

Action Fund (LEAF), which had intervener status in the case. LEAF argued that those

materials performed a different, emancipatory role in the gay and lesbian community and

as such ought not to be considered harmful to society. In contrast, Equality Now, another

intervener group, advanced a liberal rights argument claiming that gays and lesbians have

just as much right as their heterosexual counterparts to be protected from depictions of

sado-masochism deemed “degrading and dehumanizing” and therefore harmful to

society’s proper functioning. By anchoring the test for undue exploitation in a harms-

based rationale, the Court was able to secure obscenity jurisprudence from criticisms by

the various intervener minority groups who argued that obscenity law was morality in

disguise (Little Sisters 2000: para 61).

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4) ‘Political Harm’ Era (2005-present)

In Labaye (2005) the Court determined that the autonomy and liberty of members of the

public were not affected in the context of the l’Orage swingers club because everyone

involved was willing and consensual. Sex in private was deemed compatible with the

proper functioning of society: “consensual conduct behind code locked doors can hardly

be supposed to jeopardize a society as vigorous and tolerant as Canadian society”

(Labaye 2005: para 71) because “the autonomy and liberty of members of the public was

not affected by unwanted confrontation with the sexual conduct in question” (Labaye

2005: para 66). Further, only those already disposed to swinging participated, a matter

guaranteed by the code locked doors, as well as membership fees and screening meetings

with potential club members. No one was coerced or goaded into sex, no one paid for or

was paid for sex, and no one was treated as a “mere sexual object for the gratification of

others” (Labaye 2005: paras. 66-71; see also Kouri 2005).

The Court ostensibly agreed with itself in Little Sisters and abandoned the

community standards of tolerance for harm and exploitation test. In its place it

operationalized a purely harm-based test for assessing criminal liability for obscenity and

indecency. In doing so, it also obviated the need for any contextualized considerations of

the harm that sado-masochism or swinging might cause to the equality interests of

women and minority groups (gays and lesbians) or attitudes towards women and men.

Focusing upon harm to abstract political values such as freedom, autonomy, and equality

enabled the Court to ignore any contextualized debates about representations of sexuality

and sexual practices so long as the latter took place in private. Moreover, the Court

essentially reversed the long-standing position that judges and juries are the best arbiters

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of community standards and put in its place a test that governs sexual practices through

freedom and autonomy (Labaye 2005: para 18). The harms-based test analyses first the

nature of the harm, and second the degree of harm, with three types of harm rooted in

case law: harm to those whose autonomy and liberty was restricted by being confronted

with “inappropriate” conduct; harm to society by predisposing others to anti-social

conduct; and harm to individuals participating in the conduct (Labaye 2005: para. 36).

The posited harm test thus becomes another technology of risk in the field of

criminal justice, in which the risk-based approach to governing has become predominant.

Much like other risk technologies, the risk here is not “regarded as intrinsically real, but

as a particular way in which problems are viewed or imagined and dealt with” (Rose,

O’Malley, and Valverde 2009: 18). In practice, the probabilistic technique in which large

numbers of events are sorted into distribution — that is, the articulation of risk of harm

— is delegated to the analytical contortions of lower courts, with the Supreme Court

stating that an “obvious” risk of harm could obviate the need for factual evidence.

In this regard, it appears that in terms of indecency adjudication, a public location

is one aspect that could make the risk of harm sufficient to disregard any scientific

evidence of risk. In these terms, the harm-based test draws a boundary around the private

sphere while widening the boundaries of state intervention in the public sphere largely on

the basis of perceived threats to abstract political values like autonomy irrespective of

any actual harm caused. This is not to say that the private/public divide for the purposes

of indecency is new after Labaye. What is new are the specifically articulated deployment

of risk discourse and the definition of certain public behaviours as risky and therefore

presumptive of harm to society’s proper functioning. Under the new theory of harm, any

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citizen walking down the street who encounters a couple engaged in consensual sex has

had his or her liberty value, trumping their “actual” liberty, infringed which, under the

new test, causes “harm.” Constructing harm as a threat to political values allows fact

finders to insert their “own knowledge” to construct harm. Certainly both Mara (1997)

and Tremblay (1993) used this kind of assessment in determining whether the community

standards of tolerance for harm test was offended.

Governing to Protect Liberal Values

In Labaye (2005) a differently configured Court, led by conservative government

appointee the Right Honourable Chief Justice Beverley McLachlin, reinterpreted a

harms-based approach to regulating indecency and obscenity. The Court a) sought factual

evidence of harm (though we argue this demand is equivocal); b) created conditions for

criminalizing potential harm through a discourse of risk of harm; and c) abandoned the

community standards test of tolerance for undue exploitation of Butler (1992), replacing

it with a more abstract test for harm and risk of harm.

What is more, risk of harm is deployed as something tangible in Labaye, forming

part of the actus reus for criminal liability for both indecency and obscenity. The

concepts of “harm” and “potential harm” are deployed to justify criminal sanction to

protect the individual freedom of non-consenting populations (such as passers-by), rather

than justify censorship to promote women’s equality interests. Now the feminist value of

gender equality has been incorporated into a functionalist view of society and of law’s

place in society such that threats to gender equality are being modelled as threats to a

functional social order. Quite understandably, this can be mistaken by some as a feminist

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victory insofar as equality has become integral to a properly functioning society. The

Court’s view of gender equality is also subsumed under the view that everyone should be

framed as an autonomous liberal subject. Feminist goals of gender equality are

transmuted to a claim that equality, subsumed under liberal values of autonomy and

liberty, already exists a priori as a functional order to be protected. The jurisprudence

presumes that the social terrain into which government can intercede, and which it should

thereby manage and protect, is a consensual moral order characterized by autonomy,

liberty, and equality. A society that is thus constituted is therefore threatened by

obscenity and indecency. Inequalities and marginalization are not seen as structural social

phenomena but rather as risks to prevent.

By abandoning the community standards of tolerance test, which arguably

allowed for some limited feminist and queer engagement with the state, the harm test

shifts towards political abstraction. In theory, this allows for equality-based prosecutions

but, in practice, prosecutions tend to focus on freedom (liberty) by ostensibly protecting

the autonomous subject of neo-liberalism from sexual danger. With obscenity and

indecency (once again) constructed as a threat to the normative order, women’s situation

is addressed, not from the concrete experiences of women in the sex trade (both positive

and negative), but in a sense of a general set of values operating to buttress the properly

functioning society. This society, rather than the women, has to be protected against

obscenity and indecency; ironically, this largely involves women as the agents of harm

and targets of the state.

Despite the Court’s demand for positive knowledge of harm and risk of harm,

Labaye operationalizes an autocratic test much like its predecessors in that it is devoted

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mainly to protecting a normative vision of society rather than promoting women’s

equality. This “new” test links criminal regulation to liberal moral and political

principles, and this move has the potential to limit sexual freedom by appealing to un-

interrogated societal norms. This governmental rationality brings a particular sexual

subject into existence: women and other sexual minorities who are engaging in sexual

activities for commercial consumption are deviants from whom “proper society” must be

protected to ensure liberal freedom and autonomy. With respect to indecency, it is indeed

women as sex trade workers who will be the Criminalized Other and who pose a risk of

harm thus threatening the proper functioning of society; the threat is constructed as more

acute when the conduct is of a sexually explicit nature and is determined to have taken

place in “public,” thereby interfering with “our” autonomy and liberty (Labaye 2005:

para 62).

Labaye’s Functionality

The Labaye Court’s new harm-based test, which abandons a consideration of the

community’s ostensible tolerance for harm, establishes that a putative factual basis must

exist for a harm to trigger state intervention. The subject of the community standards test

was what the reasonable (and “ordinary”) member of the community would tolerate of

others and not what they themselves would or would not tolerate. The courts never used

to ask whether members of the community would themselves consume the impugned

material; instead they asked whether the material ought to be tolerated. For this reason

some feminist commentators objected to the community standards test because it allowed

for the tolerance of sexually explicit materials and practices that undermined women’s

21

equality (Benedet 2001). 2 From this perspective, the community standards test was

simply too lax.

The new Labaye test answers this critique but removes adjudication from the

terrain of tolerance for others being exposed to certain materials and moves it into the

terrain of identifying harm to abstract political values (which could include feminist

values such as equality). The obscenity and indecency question has been reduced not to a

tolerant (or intolerant) community but to a question of “harm” to individuals or society,

understood through a harm to a value formally endorsed through the Constitution such as

equality (Labaye 2005: para 62). In that regard, the new rationality justifies

criminalization on the grounds that indecency offends liberal ideology. In addition, even

a “risk” of harm to the value of equality could presumably justify censorship and criminal

sanction. In most cases expert evidence would help to establish any of the alleged harms

but when the Crown relies on establishing a risk of harm rather than an actual harm, such

evidence may be absent (Labaye 2005: para. 60).

The new test solves the problem for some feminist commentators and those who

objected to the old community standards test because their vision of equality may in some

cases be achievable under the new functionalism (Craig 2008). Such harm is

acknowledged by the Court as Hicklinesque, but the Court nonetheless claims to cleanse

the taint of Hicklin-style corruptibility discourse by clinging to evidentiary contortions.

According to the reasoning in Labaye, the new test is objective (rather than based on

subjective judicial interpretations of what a community would tolerate others seeing and

doing) because it relies on formal societal recognition of harm as articulated

constitutionally and upheld by judges and juries. In the context of obscenity and

22

indecency, the Court is most interested in the proper functioning of society, which is

served through criminalizing sexual practices that interfere with the political values

enshrined constitutionally (autonomy, liberty, and perhaps equality).

Presumed threats to constitutional values is the new Hicklin moral standard,

despite the Court’s efforts to distance political morality from subjective moral views. In

fact, the Court recognized some continuity of concerns from the earliest obscenity

rulings: “Canadian law on indecent acts, from its origins in the English common law, has

been firmly anchored in societal rather than purely moral concerns. For example, in the

early case of R v Hicklin (1868) L.R. 3 Q.B. 360, Cockburn, C.J. stated that the test for

obscenity was whether the material would tend to deprave and corrupt other members of

society” (Labaye 2005: para 15 citing Hicklin). For the Labaye Court, the problem with

Hicklin was that it was a subjective test applied unevenly by judges and jurors using their

own value judgements. Later the test shifts, asking judges and jurors to consider

community values in respect of tolerance for undue exploitation causing harm to society.

Again, the Labaye Court is dissatisfied with this approach because it continues to allow

judges and jurors to interpose their own subjective beliefs about what others might

tolerate: “The result was that despite its superficial objectivity, the community standard

of tolerance test remained highly subjective in application” (Labaye 2005: para 18). It is

only a shift towards a strictly harm-based test that begins to satisfy the Labaye Court.

“Law and Order” in Labaye

23

In the context of sexual morality, juridical discourse has shifted in the direction of “law

and order” by enabling more, rather than less, regulation with the expansion of the harm-

based test to include risk of harm. In Butler this risk calculus was introduced through the

community standards of tolerance test for “risk of harm,” but the Court also demonstrated

a proclivity to include harms to constitutional values enshrined in law. Hence degradation

and dehumanization as depicted in sexual expression could violate the community

standards of harm test if there was a risk of equality-based attitudinal harm to members of

society from exposure to certain kinds of sexual practices (such as sado-masochism). The

shift to this type of political morality is completed in Labaye through the explication of

the degree of harm — that harms must damage social cohesion when actions or speech

are incompatible with Canadian society.

The community standards of tolerance test asked not whether a citizen would

engage in a particular kind of sexual behaviour; instead it asked whether as citizens of a

liberal society we ought to tolerate others engaging in that behaviour. The new harms test

transposes what was mainly a jurisdictional test onto the regulation of conduct (Smith

2006: 5). This move illustrates the kind of activism Barbara Hudson (2003: 62) describes

as a feature of an “authoritarian populism” framework in law and order:

Neo-liberal economic orthodoxy insists that “markets must decide”…. If

governments cannot pursue activism in the economic sphere, but nevertheless

wish to project themselves as strong, then they must select some other sphere for

activism. Crime fulfils this requirement perfectly, fitting the late-modernist mood

24

for fear of strangers, and the late-modernist mode of laying blame for risk on

individuals.

The functionalism of the harm test may well create sexual “enemies within” against

whom the courts will defend “us” in the name of protecting constitutional values, even

though when, as in Labaye¸ “others” are insular and sequestered from proper society in

private clubs such as l’Orage, such conduct is permissible because the “infection” is

contained (Jochelson 2009).

The new harm-based test is justified through an appeal to a functionalist view of

the role of law in protecting society from harm. Views about the harm that the sexual

conduct at issue may produce, however widely held, do not suffice to ground a conviction

according to Labaye, but this is not to say that social values no longer have a role to play.

On the contrary, to ground a finding that acts are indecent, the harm must be shown to be

related to a fundamental value reflected in our society’s Constitution or similar

fundamental laws, like bills of rights, which constitute society’s formal recognition that

harm of the sort envisaged may be incompatible with its proper functioning. Unlike the

community standard of tolerance test, the requirement of formal recognition inspires

confidence that the values upheld by judges and jurors are truly those of Canadian

society. Autonomy, liberty, equality, and human dignity are among these values, yet they

are only at issue when the material or activity threatens the proper functioning of society

(Labaye 2005: para 33).

Here we can see that the Court fails to recognize that judges and jurors give

content to the sorts of things that ostensibly harm political values and therefore

25

undermine the proper functioning of society. Such reasoning assumes there has been no

debate in the literature about whether or not obscenity and indecency cause moral harm

(Koppelman 2005) or whether censorship is the approach that ought to be taken in

addressing the issue of “evil” ideas (Koppelman 2006). Instead, the Court shifts from a

focus on direct and attitudinal harm to citizens towards harm to societal values. Once the

Court’s theory of harm steps towards affronts to political values, we enter a quasi-

authoritarian legal regime in which ideas about autonomy, liberty, and equality are fixed;

it is only the courts that will decide when these values have been harmed in relation to the

proper functioning of society. What is absent from judicial consideration is the harm in

relation to actual persons in lived contexts because evidence of harm is only required de

jure and not de facto; the community’s views have been replaced with those of the

judiciary acting in the place of the sovereign. Therefore, substantive harms to women’s

equality or the harm caused to women’s freedom to engage in sexual practices by the

criminalization of indecency are the other side of a political coin that may rarely be seen

under this sort of governmental rationality. The Court has created a kind of moral fusion

between “law and order” and the policing of political values through assessment of

risky/unruly sexualities (i.e. “dangerous” sex practices). This new approach is further

extended to include “risk of harm” to political values that might undermine the proper

functioning of society.

This political morality is rooted in harm to political values (equality, autonomy,

and liberty), harm to society through the promotion of anti-social conduct, and harm to

individuals participating in the conduct. We associate this governmental rationality with

neo-liberalism because the Court extends the regulatory apparatus by suggesting that its

26

decision is enhancing freedom through criminalization of dangerous conduct, since it sees

risk of harm as a bright line standard for the establishment of guilt. Yet, this has the

unfortunate side effect of removing contextual debate from an accused’s potential

defence arsenal. In other words, while the Court places value on liberty, it is actually

imposing less freedom. In terms of participation harms, obscenity and indecency

jurisprudence has always placed male attitudes front and centre in the rationale for

criminalization. Rather than seeing the social conditions that compel women into the sex

trade as the kind of inequality against which to inoculate society, the Court sees

attitudinal harm to men, and their subsequent behaviour towards women, as what causes

the inequality; the participants come to their participation as equal subjects.

The notion of community standards of tolerance for harm had potential to widen

the public discourse to allow for the recognition of difference and to recognize that

sexually explicit materials needed to be understood contextually from the perspective of

marginalized communities, even if these arguments could be ignored by the Court. Under

such a contextual approach, the case for obscenity or indecency could be aggravated or

mitigated by the multi-vocal character of evidence. Unlikely defenders of “obscene”

speech (such as queer special interest groups in Little Sisters) might actually problematize

the presumption that certain forms of apparently violent sexual expression are harmful to

participants or onlookers. The effects on “liberty” under such an approach could cut

multiple ways, and such complexity is itself supportive even of traditional understandings

of liberty, which is how these arguments may have been successful. If, under the Labaye

test, jurists calibrate harms based on their own sense of generalized universality,

establishing objective harm or risk of harm loses not only context, but may work to

27

buttress law and order; being prudent about risk supports constraint. The “I know it when

I see it” test for criminal indecency (and obscenity) has returned under the guise of the

Labaye harm test.

Risk Discourse

The Court’s use of risk discourse is especially problematic given that the purpose of

evidence-based risk analyses in the criminal justice system is to predict future offending

behaviour and little else (O’Malley 1996; Erikson and Doyle 2003). In these terms, the

analysis of “risk to abstract societal values” in the service of criminalization is

particularly troublesome. In aiming to govern sexual danger through risk of harm to

political values, the Court inserts a risk discourse of avoidance and reduction measures

into its governance strategy. In doing so, the Court commits what Angela Harris (2006)

refers to as a kind of category error.

Risk management thinking as it is established in the law is mainly used to predict

future offending of prisoners (based on actuarial data) in order to protect the members of

society from violent criminals. Similar reasoning is now being adopted as a control

strategy to criminalize indecent conduct or obscenity on the un-interrogated (and legally

unproven) grounds that it poses a “risk of harm” — not actual physical or attitudinal

harm (which have traditionally been understood as the result of exposure to obscenity and

indecency, and which do correspond somewhat to the protections from violent criminals)

— but rather to society’s proper functioning. We are left with a jurisprudential situation

in which a court’s perception of what might cause harm to political values by a given

28

sexual circumstance is a justification for the imposition of state power. Therefore, where

the new Labaye rationale seeks evidence from the Crown of a “risk of harm” to establish

the actus reus of a crime, it represents a potential widening of the criminal justice net in

relation to punishment of the individual in these sorts of cases. Citing a potential terrorist

attack as justification for requiring little in the way of causal probability and thereby

allowing the mere possibility of such an attack to justify prior restraint through criminal

sanction, on the ground that, “the more extreme the nature of the harm, the lower the

degree of risk that may be required to [be proven]” (Labaye 2005: para 61), the Court

would allow for a possibility of risk of harm to prompt criminalization when the

consequences of the act could be dire. The Court does little to explain when sexual action

or sexual expression could amount to the same quantum of consequence as terrorism, but

its focus on the risk of such a consequence suggests a relaxation of criminal evidentiary

standards. Post-Labaye the state is justified in intervening in such situations of imputed

and even improbable sexual danger (reconfigured as risk to political values).

Pre-Labaye the Canadian courts were provisionally required to weigh evidence of

tolerance of the Canadian community’s perspective on these moral questions. The Labaye

Court now weighs evidence of harm and risk of harm (rather than tolerance of particular

kinds of materials) but judges are not required as a matter of law to consider the

subjective perspective of the community on moral questions having to do with sexually

explicit materials and practices that may or may not cause harm and political offence. As

a result, we are left with a situation where we must rely on the judiciary to seek evidence

of harm and risk of harm; this, we are assured by the majority in Labaye, will usually

require social science evidence, but once again, the Court allows that the more extreme

29

the nature of the harm the less evidence need be tendered. Evidence of context,

subjectivity, and interpretation in the form of intervener evidence from multiple affected

communities expanded the discourse around sexuality and sexual freedom in Canada. In

both Butler and Little Sisters, members of multiple communities, including sexual

minorities, presented intervener briefs that the Court considered in its consideration of the

constitutional justification for the community standards test of tolerance. Once a

consideration of the community’s viewpoints on tolerance is abandoned and replaced by

a more abstract and decontextualized, albeit “objective,” exploration of harms and risk of

harms, political debate about moral questions is foreclosed. In other words, by

abandoning the community standards test of tolerance in favour of an internally justified

approach, the Court no longer has to seek external input from members of society about

actual harm to persons or positions because harm to internally defined values is what they

believe they are protecting through criminalization. In other words, the Court’s

functionalist approach protects its own interpretation of society’s values, rather than

people.

Moreover, Labaye asserts a particular social order that is already free from sexual

inequality and the oppression of marginalized sexual minorities; its aim is to intercede

into the field to inoculate society from risks and harms that undermine its proper

functioning. Therefore, the Court constitutes society as one in which liberty and equality

exist a priori as a sustaining feature of society. Liberal constitutional values are both

threatened and harmed by obscenity and indecency, which therefore disrupt the smooth

functioning of a consensual moral order.

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The use of “risk of harm” as a factor to substantiate guilt in any case before the

court creates more opportunity for state intervention to criminalize conduct and censor

sexually explicit materials. However, because the new test abandons the community

standards test for tolerance of undue exploitation, replacing it with a more abstract test of

risk of harm and harm to individual’s and society’s political values, questions about the

negative impact of criminalization and its effects on individuals and communities of

interest are minimized.

Rather than seeing inequality and the oppression of sexual minorities as a

structural feature of society wherein the work of the courts is a mechanism for redress,

the Labaye Court operates as the paternalistic protector of society from those sexual

practices it deems risky and harmful. Security in this form of “pre-crime” can trump both

evidenced-based decision-making and sexual freedom in the name of protecting “us”

from “them.” That the “us” also includes children at risk and other non-consenting

populations only makes the approach that much more appealing. Intervening evidence of

the value of radical sexual conduct in communities of alternative sexualities (for instance,

as was the case in Little Sisters) is no longer relevant post-Labaye. The move by the Court

to divorce itself from the politics of sexuality was partial in Butler, when the juridical

language shifted towards harm and risk of harm considerations. In Labaye the divorce

judgement is granted.

If it can be agreed that the Labaye Court has marshalled an actuarial principle in

the context of constituting criminal guilt for the purposes of obscenity and indecency, it

has conflated a juridical justification for government action (risk of harm) with the

establishment of criminality. Risk becomes a proxy for offence. Labaye therefore creates

31

the opportunity for expansive control of sexual crime. Avoidable offence to political

values, as construed by a court, can result in criminal sanction. This is neo-liberal terrain

in that the dictates of liberalism are used to constrain the freedom of the accused, while

the interventions of sexually marginalized communities are quieted by the reliance on

risk and harm discourses.

The Price to be Paid

In Labaye, the Supreme Court of Canada has reified a harm-based test that establishes the

actus reus of an indecency- or obscenity-based offence on the basis of harm to society, as

well as risk of harm to society. The threats include damage to human attitudes and

political values. That legally imputed risk can establish the actus reus of an offence

creates ex post facto guilt in some cases, especially where an accused could never be

aware that his or her conduct was capable of changing attitudes or affronting political

values. This is, in itself, a jurisprudential turn that not only results in a novel construction

of guilt, but creates gaps in the causal requirements for harm; a relaxation of evidentiary

strictures when harms are obvious to the trier of fact. The price paid for such a

jurisprudential turn is more than discursive. The price paid serves the usual functionality

of obscenity and indecency law and the contortions used to justify criminalizing moral

harm.

By teasing out the thread of harm and risk of harm, we have shown how the

governmental rationality underpinning obscenity and indecency jurisprudence shifts away

from grounding power within the subjectivity of the Canadian community (albeit as

perceived by judges and jurors) towards the Court’s conception of a more objective test

32

because “harm or significant risk of harm is easier to prove than a community standard”

(Labaye 2005: para 24). This turn of emphasis from subjective to objective is more

linguistic than substantive. In actuality, the Court marches towards pseudo-science and

faux objectivity in its logic and effort to ground harm in constitutional values to maintain

its social order. It seeks to protect its version of equality in the name of security.

Consequently, when equality seeking movements embrace this functionalist approach

they may inadvertently enhance security through the policing of “pre-crime” (in the name

of protecting equality) rather than promote sexual freedom. The Court may not be able to

list specific incidences of obscenity and indecency, but it understands that risks of harm

can justify criminalization when it sees it. The Court has thus embraced a neo-

Hicklenesque principle for obscenity and indecency under the guise of its harm-based

test.

Notes 1 Here the Court was examining the constitutional reasonableness of Parliament passing an obscenity law rather than adjudicating whether actual harm occurred in the case at hand. The Court only had to consider whether Parliament had reasonable objectives in passing a law that respected the rights of the accused to a rational degree (i.e. the Oakes (1986) test for s.1). Thus the Court did not have to articulate the evidentiary strictures of criminal liability analysis. The Court noted that in the face of “inconclusive social science evidence” Parliament need only have a “reasonable basis” for passing a law (Butler 1992: 502-3) — this was a matter quite apart from what evidence a prosecutor needs to adduce for the purposes of criminal conviction. Indeed the conflation between constitutional harm and harm for criminal liability was a complete fiction in the absence of suitable expert evidence (Cossman 2003: 92). 2 Some argued that community standards imposed heterosexual norms on minority sexual communities (Cossman 1997).