Evaluating The Obscene and Indecent: The Evolution of Indecency Tests in Canadian Law

Evaluating The Obscene and Indecent: The Evolution of Indecency Tests in Canadian Law

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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...

... middle of paper ...

...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

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