(Note: This is a test essay written for ABSAS, an agency who claim to provide essays/ dissertations, theses for university students. The agency did not bother to give feedback even after 2 weeks and that gives me the liberty to post it here.)
The hypothetical Law question relates to charter of rights available to Canadian citizens and the answer is here.
The issue on appeal is whether prohibiting sales or renting of obscene material infringes the right to freedom of expression.
The respondent Mr. Garcia contends that s. 163 (1) (2) of the Criminal Code, 1985 infringes his right to freedom of expression provided by s. 2 (b) of the Charter of Rights and Freedoms (Charter) and that the Crown’s appeal against his acquittal on 242 counts of selling obscene material is not tenable.
Held: The appeal is allowed. The case is remitted for fresh trial of the 242 acquittals. The Charter under s.1 justifies legal prescription of reasonable limits on the rights afforded by s. 2(b).
The facts of the case are startlingly similar to R. v. Butler (1992). While logically, an analogous decision could be entered, a brief analysis of the present case is germane. The courts adjudicating constitutional questions may revisit earlier decisions under the principle that along with the need to maintain “finality and stability” of the law, the courts must have flexibility to comprehensively discharge their role. The review may be undertaken only when there are “significant developments in law” or circumstances that “fundamentally shift parameters of the debate” (Canada (Attorney General) v. Bedford, 2013).
The question whether there are major developments in law is answered in the affirmative. It is true that the courts have viewed obscenity through a different lens since Butler (1992). An earlier judgement allowed the argument that as the aims behind banning child pornography and adult pornography are different, the notions applied when scrutinising child pornography are not appropriate when examining adult pornography. This argument is not strong since the court went on to observe that combining sex and violence or degradation and dehumanization “are likely to cause harm” (R. v. Smith, 2005). Effectively, this opens the Pandora’s Box on what constitutes harmful pornography and what is not, a situation which leads to subjective assessment.
Another argument is that the degree of an infringement must be assessed to determine whether the law is “catching too much” (R. v. Sharpe, 2001). The inference is it must be seen whether obscene material creates a hazard for the society. A conduct can be categorised as indecent criminal activity if it is proved that it poses a considerable risk to individuals or society (R. v. Labaye 2005). Studies (Dept of Justice, 1985) show that pornography promotes an unfavourable mind-set and affects gender equality.
Finally, there is palpable tension in holding that the public is not affected when a conduct is restricted only to members of a private club (R. v. Labaye 2005). After all, the private members will return to mingle with the public and can then pose a hazard. The private use concept is equally questionable (R. v. Barabash, 2015). The Charter does not distinguish between private and public conduct.
As such the respondent’s contention that he was operating but a private club restricted to members is not valid. The case is returned to the trial court for retrial of the 242 acquittals.
Canada Dept of Justice. (1985). Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution. (Report No. NCJ 131616). Retrieved from https://www.ncjrs.gov/pdffiles1/Digitization/131616NCJRS.pdf
Canada (Attorney General) v. Bedford,  3 S.C.R. 1101
Charter of Rights and Freedoms (The Constitution Act, 1982
Criminal Code, R.S.C. 1985, c.46 (Criminal Code, 1985)
R. v. Barabash, 2015 SCC 29
R.v. Butler  1 SCR 452
R. v. Keegstra,  3 S.C.R. 697
R. v. Labaye 2005 SCC 80
R.v. Sharpe 2001 SCC 2
R. v. Smith, 2005 CanLII 23805 (ON CA)