Reconstitutions of Harm: Novel Applications of the Labaye Test Since 2005

Abstract

In R. v. Labaye, the Supreme Court revised the test for Criminal Code offences involving indecency and obscenity, replacing the previous community standards of tolerance test. Despite the Supreme Court’s demand for positive knowledge of (risk of) harm, the Labaye test still largely protects a normative vision of society rather than promoting human sexuality and freedom of expression. The judiciary post-Labaye continue to fill evidentiary vacuums with circumstantial evidence and intangible harms, informed by judicial tastes rather than empirical harm. Labaye has also become a discursive construct that is explicative of harm in other public law arenas. This article reveals the inconsistencies in applications of the Labaye test and considers whether a more principled definition of harm is needed in indecency and obscenity cases and beyond.