Obscenity became an offence in 1663 when Sir Charles Sidley was convicted for his behaviour after a drinking orgy. He appeared naked on a balcony and threw bottles filled with his own urine down among the people in Covent Garden. This case was the basis for convicting Edmond Curl in 1727 for publishing a pornographic book, an English case that established the crime of obscene libel. The Obscene Publications Act of 1857 (England), with its definition of obscenity, was most famously applied in the Hicklin case (1868). In upholding an order for the destruction of a publication, Chief Justice Cockburn declared, "I think the test of obscenity is this, 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 a publication of this sort may fall."
Evolution of Obscenity Law
From its enactment in 1892, the Canadian Criminal Code has included as an offence the publication of obscene matter tending to the corruption of morals. Definition of "obscene matter" was not provided; the test applied was the Hicklin case.
The 1959 amendment to the code (s159.8) reads: "For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene." The "undue exploitation of sex" is determined either by "the internal necessities" of the work itself, or by "the standards of acceptance of the community," the best guide for which was provided by Mr Justice Freedman of the Manitoba Court of Appeal in the Dominion News & Gifts case (1963), upheld by the Supreme Court of Canada: "Those standards are not set by those of lowest taste or interest. Nor are they set exclusively by those of rigid, austere, conservative, or puritan taste and habit of mind. Something approaching a general average of community thinking and feeling has to be discovered Community standards must be contemporary. Times change, and ideas change with them Community standards must also be local. In other words, they must be Canadian. In applying the definition in the Criminal Code, we must determine what is obscene by Canadian standards, regardless of attitudes which may prevail elsewhere, be they more liberal or less so."
In 1985 the Supreme Court of Canada, in the Town Cinema Theatres Ltd case, added that the "community standards" test is one of tolerance - not what Canadians think is right for themselves to see, but rather what they could not abide other Canadians seeing because it would be beyond contemporary standards of tolerance to allow them to see it. Material which exploits sex in a "degrading and dehumanizing manner" will fail the community standards test as it places women in positions of subordination, servile submission or humiliation which, if available, is likely to cause harm to society.
In Butler (1992), the Supreme Court of Canada tied the community standards test to the harm caused to women (and sometimes men) by the proliferation of pornography. The court held that the degree to which community standards are offended is dependant upon the the degree of harm likely to flow from society's exposure to the pornographic material at issue. The greater the likelihood of harm, the more likely the material will offend the community standard of tolerance. Even if material is found to unduly exploit sex, the "internal necessities" test, also known as the defence of "artistic merit," is available for material which advances a literary or artistic theme that is internally necessary to the work itself and is not merely "dirt for dirt's sake."
Tested against the Canadian Charter, the court in Butler found that the obscenity provisions in the Criminal Code were reasonable limits on freedom of expression as the material targeted by the code was not of great value to society and left other sexual material, which was not violent or degrading, publicly available.