Donald Butler Case Summary

Summary of the Case
On August 1987, Donald Butler opened a store in Winnipeg, Manitoba, called the “Avenue Boutique”. In this store, Butler sold and rented pornographic publications that were considered “hard core” and sexual paraphernalia. A couple weeks later, the City of Winnipeg Police searched and seized Butler’s sexually explicit materials lawfully. From this, Butler was charged with 173 counts under s. 163 of the Criminal Code. These charges included s. 163(1)(a) which criminalizes the distribution and the possession for distribution of obscene materials, as wells s. 163(2)(a) for selling and exposing obscene material to the public. In October of 1987, Butler was charged an additional 77 counts under s. 163 of the Criminal Code, on the grounds that he reopened his store and was caught again disturbing, selling and exposing obscene materials to the public. In order to be charged under s. 163 of the criminal code, the materials sold,

According to s. 163 of the criminal code obscenity is the “undue exposition of sex or sex that includes crime, horror, cruelty and violence”. In the trial court, the judge concluded that by interpreting s. 163 and its definition of obscenity, it violated our s. 2(b) right of freedom of expression guaranteed in Charter of Rights and Freedoms. The trial judge believed that we must hold the Charter paramount if any law contradicts it, and this doesn’t necessarily mean we have to strike down the contradicting law. Therefore Butler was acquitted of his 242 counts under s. 163 of the criminal code. In regards to the remaining 8 charges, they were related to 8 films, which contained material that was legitimately prescribed under s.1 of the Charter (the justification for the violation in the Charter was demonstrably justifiable). Therefore he was convicted on those 8 counts