MOKGORO J would justify the violation of one of the most fundamental freedoms enshrined in the Charter.75 The Code challenged in Butler, on the other hand, could be upheld, because its “overriding objective” was not moral disapprobation as such, but the “avoidance of harm to society” in the form of, inter alia, the encouragement of violence, and the reinforcement of gender stereotypes.76 [46] Indeed, subsequent applications of Butler have emphasized the centrality of the “harm principle” in Butler, and the relatively narrow range of sexually explicit material that is subject to restriction under that principle. Thus, for example, in R v Hawkins, the Ontario Court of Appeal noted that: Under the Butler test, not all material depicting adults engaged in sexually explicit acts which are degrading or dehumanizing will be found to be obscene. The material must also create a substantial risk of harm to society. That risk is now an element of obscenity-based crimes. Like any element of a criminal allegation, it must be proved beyond a reasonable doubt . . . I cannot accept that Butler compels the conclusion that once the portrayal of sexually explicit acts is found to be degrading or dehumanizing, it necessarily follows that the films are harmful and, therefore, obscene.77 75 Butler, supra, 30. 76 Butler, supra, 30-33. The Court’s reasoning reflects the influence of American academic Catharine MacKinnon, who has developed a powerful critique of obscenity law as developed by the United States Supreme Court. Professor MacKinnon rejects both the morality-based approach, and the Millsean analysis of harm that she argues characterises First Amendment jurisprudence. See Feminism Unmodified, Harvard Univ. Press (1987), 156-57 (“The trouble with this individuated, atomistic, linear, isolated, tortlike -- in a word, positivistic -- conception of injury is that the way pornography targets and defines women for abuse and discrimination does not work like this. It does hurt individuals, not as individuals in a one-at-a-time sense, but as members of the group ‘women.’ . . . [The] causality is essentially collective and totalistic and contextual. To reassert atomistic linear causality as a sine qua non of injury -- you cannot be harmed unless you are harmed through this etiology - is to refuse to respond to the true nature of this specific kind of harm.”) Responding to Professor MacKinnon, Ronald Dworkin agrees that the availability of pornography may crucially affect the social climate, but asserts that her argument that free expression may be limited in the interests of gender equality is misplaced, because free expression itself ultimately serves fundamental egalitarian interests: “[W]e may and must protect women . . . from specific and damaging consequences of sexism . . . We must protect them against unfairness and inequality in employment or education or housing or the criminal process, for example. But we must not try to intervene further upstream, by forbidding any expression of the attitudes or prejudices that we think nourish such unfairness and inequality, because if we intervene too soon in the process through which collective opinion is formed, we spoil the only democratic justification we have for insisting that everyone obey these laws, even those who hate and resent them.” Ronald Dworkin, A New Map of Censorship, Index on Censorship, May/June 1994, 9-15. See note 34, supra. 77 [1993] 6 C.C.C. (3d) 246. 25