Published In

Osgoode Hall Law Journal

Document Type

Article

Publication Date

2001

Subjects

Canada; Pornography; Sex Equality; Sexual Orientation; Discrimination; Obscenity; Tariff and Customs Laws

Abstract

Scholars and philosophers spend much of their time discussing what pornography means and whether it can be defined. This debate persists despite the fact that most men, regardless of their sexual orientation, seem to understand quite well what pornography is, and what it is for: they produce it commercially, buy it in magazines, rent it in videos, and search for it on the Internet. The pornography industry has the distinct advantage of selling a product that, in legal terms, is considered "expression," and therefore a product that has been declared worthy of constitutional protection under section 2(b) of the Canadian Charter of Rights and Freedoms. The decision of the Supreme Court of Canada in Little Sisters Book and Art Emporium v. Minister of Justice challenges the interest of those who want the traffic in pornography to be completely unregulated. Fortunately, the Court in Little Sisters recognized pornography for what it is – the practice of sex inequality – and held that gays and lesbians were no less entitled to legal protections that attempt to limit the inequality that pornography inflicts. The author believes the explanation for this result can be found in the reasons why the Court unanimously recognized that same-sex pornography threatens, rather than promotes, equality rights. The underlying goal of the Little Sisters litigation was to attack the Butler decision by claiming that feminist arguments about pornography were wrong, and inevitably provoke restrictions on the "expression" of "minority sexual practices." This comment begins by setting out some of the facts in Little Sisters, and ends by arguing that gay and lesbian pornography is a threat to sex equality. It does this by examining some of the exhibits at issue in the appeal, on the basis that an appreciation of the range of materials that were potentially affected by the bookstore's claim is important in order to evaluate the claim fairly. It then outlines and critically evaluates the arguments that were advanced by the bookstore, and the intervener groups in support of it. Finally, it situates the Court's decision in this context. Mainly, it supports the Court's decision in Little Sisters, which confirmed most of the findings of the trial judge, but did not strike down the legislation.