Undressing the Canadian State: The Politics of Pornography from Hicklin to Butler

Rebecca Murdock is a lawyer with the Toronto firm Ryder Wright Blair &
Doyle.

In 1987, Winnipeg police charged video-store owner Donald Butler with
possessing and distributing obscene material contrary to Section 163 of
the Canadian Criminal Code. Butler was convicted at trial on eight
charges, but that decision was overturned by the Manitoba Court of
Appeal, which convicted him on all 250 of the original charges. Defence
counsel then appealed to the Supreme Court of Canada, alleging that
Section 163 of the Code violated Butler’s freedom of expression under
Section 2(b) of the Charter of Rights and Freedoms. LEAF (the Women’s
Legal Education and Action Fund) was the only feminist intervenor
granted standing in the case.

Three of the book’s four chapters set the groundwork for Johnson’s
assessment of the Supreme Court decision in Butler. In Chapter 1, the
author identifies her theoretical perspective as that of a “material
feminist.” In Chapter 2, she analyzes “the cultural process of
pornography,” concluding that “through pornography, everything from
sexual abuse to oppressive power relations is glamorized.” Chapter 3
reviews federal obscenity legislation as interpreted historically by the
courts (pre-Butler Courts fairly consistently defined “obscenity” as
involving sexual explicitness that offends community standards of
morality).

Chapter 4, the heart of Johnson’s thesis, argues that the Butler
Court was correct in adopting a “harms-based” test for obscenity,
“which views pornography as promoting unhealthy attitudes and beliefs
toward women and therefore harm[ing] society as a whole.” To move the
feminist debate forward, Johnson should really have begun, rather than
concluded, her analysis here.

Where the Butler Court fell short, according to Johnson, was in its
failure to acknowledge two arguments advanced by LEAF: that the equality
provisions for the Charter should be weighed into any assessment of
“obscenity” under criminal law, and that pornography should be
defined as a “practice”—which, unlike “expression,” does not
give rise to Section 2(b) Charter protections. Finally, Johnson spends
some time evaluating the Butler decision in the light of the feminist
criteria developed by Susan Cole in Pornography and the Sex Crisis
(1989).

Although Johnson is perhaps too reliant on her often-cited authorities,
she succeeds in demonstrating the inherent conservatism of the Butler
decision and the Court’s reluctance to act proactively in advancing
the equality rights of women. As a primer for feminist discussion on
obscenity law, Undressing the Canadian State coherently canvasses the
legal and social issues at stake.