B. Is s.163 a limit prescribed by law? Yes
• “does the law provide an intelligible standard according to which the judiciary must do its work?”

I) P&SO? Yes
• harm caused by the proliferation of materials seriously offend the values fundamental to our society

II) Proportionality
• type of expression which is sought to be advanced does not stand on equal footing with other kinds of expression which directly engage “core” of FOE values
• Targeted material is expression which is motivated by economic profit

i) Rational Connection Yes
• Inconclusive social science evidence (Irwin Toy)
• Sufficient rational link b/w criminal sanction and objective to restrict negative societal influence of dissemination of materials

ii) Minimal Impairment Yes
• Not necessary that the legislative scheme be the “perfect” scheme, but that it be appropriately tailored in context of the infringed right (Irwin Toy – “least ambitious means”)
• Provision is designed to catch material that creates a risk of harm to society
• Materials which have scientific, artistic or literary merit are not captured by the provision
• Not subject to the PRIVATE use or viewing of obscene materials, it is only the PUBLIC distribution and exhibition of obscene materials at issue here

iii) Deleterious Effects Yes
• This kind of expression lies far from the CORE of FOE guarantee
• Appeals only to most base aspect of individual fulfillment, and is primarily economically motivated
• Legislative Objective is aimed at avoiding harm to society as a whole by the distribution of these materials (fundamental importance)
• Restriction on FOE does not outweigh the importance of the legislative objective

Sex and s.2b in 2001:
R. v. Sharpe [2001] SCC Criminalizing Possession
Facts: Sharpe charged under CC for possession of child porn; challenged CC section on basis that it violated his FOE; Crown conceded violation of s.2b but argued justified by s.1
Issue: Does Canada’s law banning possession of child pornography injustifiably intrude on the constitutional right to freedom of expression?
Holding: • Law strikes a constitutional balance between FOE and prevention of harm to children; constitutional except for two peripheral applications relating to expressive material privately created for personal use
• Two categories of material (self-created expressive, privately held materials; and private visual recordings of lawful sexual activity made by or depicting the persons in possession, intended only for private use) are READ IN as exceptions to definition of child porn in CC
• Possession of child porn is a form of expression protected by s.2b … [visit site to read more]

Providing hints to government:
•    Concern about LaForest’s dilution of s.1; risk that Charter violations will be too easily justified
•    Concern about gov’t withholding evidence:  “gov’t should remain non-adversarial and make full disclosure”
•    Evidentiary burden wholly borne by the government
•    Agreed that unattributed health warning is a violation of 2(b)
•    Agrees with dissent about the contextual approach taken, that due … [visit site to read more]

RJR MacDonald Inc. v. AG (1995)    Gov’t concedes prohibition on advertising constitutes an infringement of FOE; and objective is P&S
Facts:    Tobacco Products Control Act … [visit site to read more]

P&S Objective: … [visit site to read more]

CON DD decision:
o    Mandel and Hutchinson; laissez-faire economy is potential threat to … [visit site to read more]

s.1.  The CCRF guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
•    Text indicates Charter rights are NOT absolute; gov’t can limit them

Two main structural components of s.1:
1.    Requirement that all limits on rights be “Prescribed by Law”
2.    Requirement that all limits on rights be “Reasonable” as well as … [visit site to read more]