V. E. Toews

The appellant challenged the constitutionality of the Criminal Code obscenity provisions after being charged in connection with the sale, possession, and display of sexually explicit videotapes, magazines, and sexual devices.

The Court held that s. 163(8) infringed freedom of expression under s. 2(b) of the Charter, but upheld the provision under s. 1 on the basis that its true objective was preventing harm to society, particularly harm associated with degrading or dehumanizing sexual material.

The Court reformulated the obscenity analysis around harm, community tolerance, degradation or dehumanization, and internal necessities or artistic merit.

Because the courts below had applied materially different approaches, the appeal was allowed and a new trial was directed on all charges.

On a constitutional reference concerning prostitution-related Criminal Code provisions, the Court considered whether the bawdy-house offence and the public communication offence infringed freedom of expression and the principles of fundamental justice.

The majority held that the public communication offence engaged s. 2(b) because it prohibited public communication for the purpose of prostitution, but found the infringement justified under s. 1 in light of Parliament’s objective of addressing the social nuisance associated with street solicitation.

The majority further held that neither provision was impermissibly vague and that s. 7 did not protect the asserted economic liberty to pursue prostitution as a profession.

The appeal was dismissed, with two judges dissenting on the basis that the communication provision unjustifiably infringed both ss. 2(b) and 7.