The interpretation of the obscene and indecent has changed greatly over the years in Canadian law. The courts evaluate potential criminal offences, under the Criminal Code of Canada, using tests to see if they are obscene or indecent in the eyes of the law. Though there is no explicit definition of obscenity in the Criminal Code, it can be interpreted to entail any materials or actions that fail to satisfy the prevailing test. Formulating a concrete test to be used in all of the relevant cases has proven difficult, with many modifications being made as the views of society change. The two major tests that have been predominantly used are the Canadian Standards of Tolerance Test (CSTT) and the Harm Test. The former emphasizes the degree of tolerance Canadian society would permit, while the latter focuses on the harm or risk of harm a display could provoke. In this essay, I will argue that the Harm Test is a better measure of obscenity and indecency than the CSTT ever was. The basis of my argument lies on two main premises. Upon providing a brief synopsis of indecency tests used throughout Canadian history, I will explain why the established test should make assessments based on criteria that can be measured more objectively than community values. Following this, I will elaborate on my belief that it is more reasonable to define obscenity based on the risk of harm a certain act or object presents, rather than through societal tolerance. To conclude, I will give my final remarks on why the Harm Test represents vast improvement and how it relates to Millian philosophy.
Since Confederation, Canada has instituted different tests to determine whether an act or object can be deemed obscene or indecent. Though there is a distinction to be...
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...aking sure the individuals are not harming themselves. Thus, it appears the Harm Test effectively achieves a delicate balance of freedom and justice, which is crucial to any well-functioning society.
Works Cited
Callaghan, G., Waluchow, W. (2014). [Lecture]. Harm & The Community Standards of Tolerance Test: From Brodie to Labaye. PHILOS 1B03, Philosophy, Law and Society. Hamilton, ON, Canada: McMaster University.
McLachlin, B. (2008). R. v. Labaye. In D. Dyzenhaus, S. Reibetanz Moreau, & A. Ripstein, Law and Morality: Readings in Legal Philosophy (3rd ed., pp. 336-341). Toronto: University of Toronto Press.
Mill, J. S. (2008). On Liberty. In D. Dyzenhaus, S. Reibetanz Moreau, & A. Ripstein, Law and Morality: Readings in Legal Philosophy (3rd ed., pp. 306-326). Toronto: University of Toronto Press.
Towne Cinema Theatres Ltd. v. The Queen, [1985], 1 S.C.R. 494
In 1973, Marvin Miller, operator of one of the West Coast's largest mail-order businesses dealing in sexually explicit material, had conducted a mass mailing campaign to advertise the sale of illustrated books, which was known as “adult material”. He was found guilty based on the fact that he violated California’s pena...
Nye, Howard. PHIL 250 B1, Winter Term 2014 Lecture Notes – Ethics. University of Alberta.
Eric Foner, Give Me Liberty: An American History (New York: W.W. Norton & Company, 2008), 326.
Susan Jacoby, in her essay entitled “A First Amendment Junkie,” attacks those who believe that the first amendment should not be cause for the continuation of public obscenity. Jacoby, adamant defender of the first amendment, questions those who wish for the freedom of expression to be denied in the case of pornography, yet seem complacent about the racism and sexism that comes from freedom of speech as well. Additionally, Jacoby argues that it is too difficult to distinguish pornography from beauty and art from obscenity. One person may see David as a wonder to behold, and yet another may look at it as degrading towards men. Jacoby believes that rather than censorship-supporters controlling what their family watches, they want the government
Pornography Under The Federal Sentencing Guidelines In The United States. Law & Contemporary Problems, 76(1), 27-52.
Young, Alan. "The state is still in the bedrooms of the nation: the control and regulation of sexuality in Canadian criminal law." The Canadian Journal of Human Sexuality 17.4 (2008).
That attitude Americans used to embrace was one that promoted strong morals. Racy material was a rarity, but more importantly an attitude of acceptance of this material was even more scarce. Comedians on television did not rely on obscene language and movies did not rely on graphic sexual content for an audience. The media has...
(7) H. L., Hart, The Concept of Law, ch. VIII, and D., Lyons, Ethics and the rule of law, Cambridge University Press, 1989, p. 78 ff,
Eric Foner, Give Me Liberty: An American History (New York: W.W. Norton & Company, Inc., 2009), 323.
In her essay “Let’s Put Pornography Back in the Closet,” Susan Brownmiller, a prominent feminist activist, argues that pornography should not be protected under the First Amendment (59). Her position is based on the belief that pornography is degrading and abusive towards women (Brownmiller 59). She introduces the reader to the U.S. Constitution’s First Amendment, and explains how it relates to her beliefs on censoring pornographic material (Brownmiller 58). In addition, she provides examples of First Amendment controversies such as Miller v. California and James Joyce’s Ulysses to explain how the law created a system to define pornographic material (Brownmiller 58). She described the system that used a three-part test as confusing (Brownmiller 58). Regardless of whether or not the First Amendment was intended to protect obscenities, she and many others believe that the legislatures should have the final say in the decision of creating and publishing pornography (Brownmiller 60).
During the 1950's there was a social movement against the pornography industry in Canada. Religious and Feminist groups were concerned about the harmful effects regarding the danger and degradation of women. The opposition to this movement was that pornography was a freedom of expression and sexual orientation. This brought about many political debates and controversies about what is ethically right and what is a personal freedom. This created many problems for the Canadian government on how to legislate pornography and up hold the Common Rights of Canada.
In the year 1970, the Canadian government founded the Law Reform Commission of Canada to ensure the progression of law making and to make recommendations for legal changes . The Law Reform Commission of Canada is constantly importing and suggesting proposals towards the criminal code of Canada. During the year of 1985, t...
In “Let’s Put Pornography Back in the Closet,” Brownmiller discusses her views on the First Amendment and pornography. She explains that pornography has become a disturbingly common sight and there should be some type of restrictions put forth to protect the people who are subject to seeing such obscene materials. Brownmiller uses her feminist views to convince the reader that these restrictions are needed, but only in cases dealing with pornographic material. She uses examples of court cases dealing with banned materials to show when the First Amendment was being used correctly to protect obscene works of art.
The United States has always prided itself on being a free country that values its first amendment. Many people agree that the most important right in the United States constitution is a citizen’s right to freely express him or herself. The problem in this situation is that people also value living in a country without fear of being offended. Our laws are created to protect one’s self as well as others. So, it is important to attempt to meet everyone’s needs as much as is possible in a free society. Dennis Barrie, director of Contemporary Arts Center of Cincinnati, was indicted and eventually acquitted for the exhibition of photographs by Robert Mapplethorpe, depicting nudity and human bondage. In 1991 Barrie spoke of the events surrounding the situation at the seventy-ninth annual convocation of the College Art Association in a speech called “The Scene of the Crime”. When Barrie described the day that the police entered the museum to remove the photographs he makes an important point, “More than anything, that image—that image of policeman in uniforms pushing patrons out of a museum because of what is on the walls—is the image that’s going to haunt me for the rest of my life. Because that isn’t our country, or it shouldn’t be our country” (Barrie 30).
The relationship between law and morality has been argued over by legal theorists for centuries. The debate is constantly be readdressed with new cases raising important moral and legal questions. This essay will explain the nature of law and morality and how they are linked.