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Evaluating The Obscene And Indecent: The Evolution Of Indecency Tests In Canadian Law

2105 words - 8 pages

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 made between these terms, one could argue indecency encompasses obscenity. Thus, since these tests are used to assess both obscenity and indecency, I will simply use the term indecent to imply both. The criteria for which this judgement is based on has evolved since Canada’s legal beginnings. The Hicklin Test was the first method used, but it was eventually rejected for being too vague and overly moralistic (Lecture 14, Slide 2). It was replaced by the CSTT, which defined indecent acts as those not tolerable to the general population.
As time went on, the test became increasingly reliant on the risk of harm. This new condition began to replace the tolerance stipulation, and it is now viewed by most as its own separate test – the Harm Test. It was in the case R. v. Labaye that the Harm Test completely replaced the CSTT. The trial, which revolved around the legality of operating a common-bawdy house, was integral to the change towards a harm condition. Justice McLachlin discussed the progression of the indecency test in this case, and outlined the new criteria for which acts in question are to be assessed. All of the employed tests were attempts to answer the question: what constitutes an indecent act? When the CSTT was...

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