Even in a progressive nation like Canada, it can be agreed on by most people that freedom of expression, even though it is a right that we all hold dear, does have its limits. However, the issue that is pertinent, particularly in law, is where this line ought to be drawn. They are issues that confront our society on a daily basis, in the media, on the streets, at work, and in the courts, and as such, it is worthwhile that we have a more reasoned set of principles designed to determine where the line ought to be drawn. Freedom of expression has many realms, one being the domain of sex, specifically pornography. This essay will examine how freedom of expression, as it is protected in the Constitution, applies to the production and proliferation of pornography in Canada. It will examine the different arguments on the issue and the cases in Canadian law that are relevant. From this it will be clear that the criminal prohibition of obscenity, with its importance on sexual explicitness, is seen by many as insufficient.
[...] The difficulty in proving a causal relationship between pornography and harms to women have led opponents to show harm in different ways, but they all lack the same causal strength, as they lack supporting causal evidence, or they are based on questionable presuppositions regarding the authority of pornography in determining the social status or linguistic powers of women. pornography is to be shown to harm women, there seems to be no way around the evidential burden of establishing its empirical effects.” (Sumner, 2004: 163). [...]
[...] The SCC has laid out, in two controversial and landmark decisions, a legal landscape which can be used to navigate the issue of pornography and hate speech in Canadian law. In Keegstra (1990), the court was divided on the issue, but in Butler (1992), the court was unanimous. The court might have been unanimous, but there was no shortage of external criticism for the judgment, and the precedent which it set. (Borovoy, 1999). In the time since then, there has been no public/social consensus as to how the issue should be handled. [...]
[...] This essay has examined how freedom of expression, as it is protected in the Constitution, applies to the production and proliferation of pornography in Canada. It has examined the different arguments on the issue and the cases in Canadian law that are relevant. From this it is clear that the criminal prohibitions of obscenity, with its importance on sexual explicitness, are seen by many as insufficient. In addition, the community standards test is not particularly helpful. If pornography is in fact harmful in some way, an objective standard is needed, rather than a simple subjective evaluation of what the community will not tolerate. [...]
[...] It is widely known that expression, in a broad sense is an act involving communication of meaning or content by any means possible, however, it becomes more complicated when communication includes gestures of body language, visual images, objects, sounds, actions and so on. In general though, the test of whether something is expressive is whether it is intended to convey meaning. But this might apply to a terrorist who seeks to send a message by bombing a public venue and in the interest of avoiding this type of expression, which is clearly against the best interest of the public, there needs to be limits placed on freedom of expression. [...]
[...] As far as obscenity and pornography are related under the scope of Canadian law, the relevant statute says that the obscene is dominant characteristic of which is the undue exploitation of sex.” (Newman, 2004). The definition does bind pornography and obscenity, but it does not imply that all pornography is necessarily obscene, and most of the public would likely argue that in fact there is much which would be considered pornography, but that is far from obscene. There is also though, a realm of ‘extreme' pornography that most would regard as obscene. [...]
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