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collective vs individual rights-

 The Canadian Charter of Rights and Freedoms , the Constitution Act, 1982, and the jurisprudence recognize that the "existing treaty
and Aboriginal rights" of the Aboriginal peoples of Canada include certain rights of a collective nature. Although these collective
rights have yet to be fully defined, it is clear that they include matters such as the inherent right to self-government; hunting,
fishing and gathering rights; collective land rights; and the right to the preservation of traditional languages, cultures and
traditions.

 The recognition of collective rights is seen by some as controversial because of a perceived conflict with more "traditional"
individual rights, such as the right to be free from discrimination. The question is asked: what will happen when an individual right
and a collective right collide? This is a valid question.

 The discussion in Canada on the perceived tension between individual rights and collective rights is also an issue on the
international scene. The modern conception of human rights finds its roots in the western philosophical traditions of individual
autonomy. In contrast, countries in the developing world and indigenous peoples have sometimes asserted a need for the
international community to recognize collective rights, such as the right to communal land ownership, as equally indispensable to
human welfare.

 The international community recognizes this duality of rights. The 1993 Vienna Declaration of the World Conference on Human
Right affirmed:All human rights are universal, indivisible and interdependent and interrelated. The international community must
treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.

 The Declaration goes on to recognize "the inherent dignity and the unique contribution of indigenous people to the development
and plurality of society" and to specify that: Considering the importance of the promotion and protection of the rights of
indigenous people, and the contribution of such promotion and protection to the political and social stability of the States in which
such people live, States should, in accordance with international law, take concerted positive steps to ensure respect for all human
rights and fundamental freedoms of indigenous people, on the basis of equality and non-discrimination, and recognize the value
and diversity of their distinct identities, cultures and social organization .

Obscenity- s2

the Supreme Court case Irwin Toy Ltd. v. Quebec (Attorney General) (1989) in saying the obscenity did not attempt to convey anything
meaningful and might just be physical. However, the Supreme Court found fault with this opinion, saying that while the obscenity related to
physical matters, they still made expression. In this case the expression was meant to be sexually exciting. The Court also noted that
degrading sex may not be protected by the Charter, but a depiction of it would be expression.

The Supreme Court pointed to R. v. Keegstra (1990) to say the obscenity laws violated freedom of expression. Keegstra demonstrated
freedom of expression should be interpreted expansively, and in the Prostitution Reference it was noted that whatever the message within
the expression, the expression itself is protected by section 2.

The Court also considered a view suggested by the Attorney General of British Columbia, suggesting that films could not be as expressive as
writing. The Supreme Court rejected the idea, noting that in making a film many creative choices in editing will have to be made.

Reasonable limits

 The Court then turned to the question of whether the infringement of section 2 could be justified under section 1 of the Charter.
This raised the possibility that the law was so vague that it might fail the section 1 requirement that a limit be "prescribed by law."
The Court, citing the Beetz opinion in R. v. Morgentaler (1988), said that a law that can be interpreted differently is not necessarily
too vague. The Court then decided that given the past case law, the terms "indecent" and "immoral" seemed sufficiently
understandable.

In asking whether the law could be demonstrably justified, the objective was considered, in accordance with R. v. Oakes (1986).

 Objectives suggested by the Crown included prevention of harm that may arise from the attitudes promoted by the obscenity. The
protection of decency was also a proposed objective. Those challenging the law stated its only objectives were moral. Historically,
the objective of the law was meant to combat immorality and its impact on society.
  The Charter of Rights suggested this objective would no longer be sufficient, as it contradicted the individual's rights. While many
criminal laws were enacted against perceived immoral things, the Supreme Court turned away from this objective and decided the
true objective of the law was to minimize dangers to society. The Court noted obscenity could encourage degrading views of
women and could promote violence. This contradicted the view of Canada as a society in which people are equal. Typically, the
original purpose of the law is what is considered under section 1. In this case, the Supreme Court justified itself by saying the
original purpose of avoiding immorality, and the recognized purpose in this case, of preventing harm, were linked. The immorality
could lead to harm. The Court also noted that Canada had international agreements that targeted obscenity, namely the Agreement
for the Suppression of the Circulation of Obscene Publications and the Convention for the Suppression of the Circulation of and
Traffic in Obscene Publications.

With a sufficient objective identified, it now had to be asked whether the law was rational and proportionate to the objective. The Court
noted, then, that the law should not affect acceptable pornography, namely the type that might celebrate female sexuality and pleasure.
Material that degrade women were similar to hate speech. It was rational to outlaw obscenity in order to protect society.

Framework for Analysis

To simplify the analysis Justice John Sopinka divided potentially obscene materials into three categories:

1. Explicit sex with violence;

2. Explicit sex without violence, but which subjects participants to treatment that is degrading or dehumanizing; and

3. Explicit sex without violence that is neither degrading nor dehumanizing.

Violence in this context was consider to include "both actual physical violence and threats of physical violence."

Justice John Sopinka then went on to state that materials in the first category "will almost always constitute the undue exploitation of sex."
Material in the second category "may be undue if the risk of harm is substantial." And, finally, material in the third category "is generally
tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production." Any material that
was considered to be the "undue" exploitation of sex would fall within the definition of "obscene" in the Criminal Code of Canada.

The court also provided for an exception for materials of artistic merit.

This framework for analysis was re-affirmed by the Supreme Court of Canada in Little Sisters Book and Art Emporium v. Canada (Minister of
Justice)

Harm Principle

 Malmo-Levine's argued that the constitutional power to enact criminal law under section 91(27) of the Constitution Act, 1867 is
limited to conduct that causes harm. He further argued that the "harm principle" should be a principle of fundamental justice under
section 7 of the Canadian Charter of Rights and Freedoms.

 Gonthier and Binnie JJ., writing the majority, rejected all the arguments for the requirements of harm under section 91(27) of the
Constitution Act, 1867 and section 7 of the Charter. They held that Parliament need not establish harm but only a reasonable
apprehension of harm.

 Gonthier and Binnie looked towards R. v. Hauser, which held that narcotics were a new matter not considered in 1867 and so falls
under the peace, order and good government power. They suggest that this case was likely wrong as narcotics is clearly a matter of
criminal law.

 The criminal law power, they state, includes the protection of vulnerable groups. Thus the government is able to control activities
for the protection of drug users and society.

Interpretation of the Charter

1. Progressive Interpretation Since a constitution is difficult to amend and its language is broad to accommodate a wide range of facts. It
calls for a flexible interpretation. Lord Sankey Edwards v A.G. (1930) ‘a living tree capable of growth and expansion within its natural
limits’
2. Generous Interpretation – Lord Sankey Edwards v AG ( 1930) he said that the provisions of the Constitution Act 1867 should not be “cut
down by a narrow and technical construction but should be given a large and liberal interpretation”
3. Purposive Interpretation - this involves an attempt to ascertain the purpose of each Charter right and then to interpret the right so as to
include activity that comes within the purpose and exclude activity that does not. (This usually comes with the generous approach)
4. Process as purpose- “the Charter guarantees the integrity of the political process itself by enhancing “the opportunities for public debate
and collective deliberation. This approach has two advantages. The first advantage is that it supplies a helpful context for interpreting
particular guaratantes. The second advantage of the process-based theory of judicial review is that it offers a solution to the problem of the
legitimacy of judicial review.