The Harms of Sex and the Risks of Breasts: Obscenity and Indecency in Canadian Law

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This article analyzes the contradictory deployment of the new test of obscenity and indecency in Canadian law, the ‘risk of harm’ test. Rather than argue with the traditional tools of CLS that the modernizing moves made by the Canadian judiciary are mere rhetorical covers for the continued existence of patriarchal and heterosexist moral regulation, it is argued here that the ‘risk of harm’ test is remarkable for its multivocality. ‘Harm’ has been interpreted by judges to mean many different sorts of things - harm to society, to morals, to women, to the constitutional values of equality. This is related to the extra-legal fact that there are many different groups inside and outside courtrooms who can take the standpoint of ‘victims of pornography and sex trade work’ and who are likely contenders for the position of legitimate authorities on the nature and significance of different harms. This does not mean that all meanings of the term ‘risk of harm’ are equal: it is clear, particularly in the recent Mara decision of the Supreme Court of Canada, that the ‘risk of harm’ test is not meant to be interpreted from either a feminist standpoint or from a standpoint sympathetic to sex trade workers and other sexual minorities. Because the ‘risk of harm’ test can and does have many meanings, even just across different courts, and because it has been re-interpreted by the same justice who originally devised it, it can therefore serve as a site upon which to reflect on the ways in which courts continuously open up new avenues for political challenges even as they attempt to reinstitute sovereignty and limit epistemological ‘pluralism’.