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are be a depen But I passion very ty great Case Summary R. v Butler R. v Butler [1992] 1 S.C.R. 452 decided: February 27, 1992 FACTS Mr. Butler was the owner of a shop selling hardcore pornographic videos, magazines and sexual paraphernalia. After a search and seizure, the police laid several charges against Butler for selling obscene materials, possessing obscene materials for the purposes of sale, and exposing obscene materials to the public according to various subsections under s. 163 of the Criminal Code. A few months later, Butler reopened his store; subsequently, he and an employee were arrested and charged again. At trial, Butler claimed s. 163 violated s. 2(b) the Charter, which guarantees freedom of expression. While the whole of s. 163 was put under scrutiny by the constitutional question, for the purposes of this case, the lower courts and the Supreme Court limited the issue to s. 163(8) which read: any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of ... crime, horror, cruelty, and violence, shall be deemed obscene. LOWER COURTS The trial judge found that obscene materials are protected by s. 2(b), and only those which contained violence, cruelty, or depicted a lack of consent, could be upheld as limitations under s. 1. However, he did not strike the legislation as it was not on its face a contravention of the Charter; rather, it had been interpreted to cover more ground than the Charter allowed. Therefore, the trial judge convicted Butler on eight counts, relating to eight materials which contained violence, cruelty or a depicted lack of consent, and entered acquittals on the remaining 242 charges. The Crown appealed the acquittals and Butler appealed the convictions. The majority for the Manitoba Court of Appeal found that the materials consisted of purely physical action and did not convey a message; thus, the materials did not fall into the protected sphere of s. 2(b) and the majority convicted Butler on all counts. One judge, in dissent, found that the content of the materials was protected by s. 2(b); however, he found that the legislation could be upheld under s. 1 in cases where violence or cruelty was depicted. The other dissenting judge held that s. 2(b) was violated and s. 163(8) could not be upheld under s. 1 as it was too broad and over inclusive. Butler then appealed to the Supreme Court. ISSUES Whether the Criminal Code sections dealing with obscenity violate Charter "freedom of expression" rights (Section 2(a)) and (if s9) whether this constitutes a "justifiable limitation" under Section 1. DECISION: Sopinka (with Lamer, La Forest, Cory, McLachlin, Stevenson, and lacobucci) found that s. 2(b) (freedom of expression) rights were infringed by the Criminal Code obscenity sections; however, s. 163(8) was upheld as a reasonable limit under s. 1. Gonthier (with L'Heureux-Dube) concurred with the outcome, but found the majority reasons too restrictive, and would have had the application of the criminal law considered in the light not only of content but also of the manner of representation