Going Beyond A Pat On The Back Essays - Foodservice, Turnover

Going beyond a Pat on the Back ? Motivation Theory at Work in the Food Service Industry America's love affair with restaurants has never been greater. According to Roy Alonso of the National Restaurant Association, there were over 750,000 locations offering food services of some sort in the United States as of 1997. It is estimated that half of all adults are foodservice patrons on a typical day, and over 43 cents of the consumers food dollar is spent at these establishments. In 1997, sales of restaurants of all types topped $286 billion dollars, and experienced a growth rate of twenty percent. However, all is no t well in the industry. With the national unemployment rate hovering around five percent ? the lowest level since 1973 ? the business of keeping and motivating workers poses a threat to an industry already in the midst of an 150 percent annual turnover rate. In addition, luring quality employees from other markets (such as the health care and retail industries) to fill the nearly four million new jobs that the industry is anticipated to create is a difficult pr oposition. According to Laura Parsons, director of staffing in North America for Burger King, ?The perception [among possible employees] is that fast food, and the service industry in general, is at the bottom of the barrel. We're losing employees every day because of this. We have to take steps to become the first employer of choice.? Thus employee retention through motivation has become one of the focal points of the industry. In fact at the Multi-Unit Food Service Operators Conference held in Los Angeles last year, it was the main topic of discussion, with countless seminars devoted to the subject. Even a cottage industry of ?incentive specialist? firms has sprung up. Numerous methods, techniques, and ideas have been tried, with varying levels of success. However, despite the superficial differences between the techniques, they are all based on the theories of motivation prompted by Abraham Maslow and Frederick Herzberg that have been modified for the industry. According to the Penguin Dictionary of Psychology, behavior is defined as being purposeful and directed towards some end. That is, it is motivated by someone or something. According to the need theory of motivation, the driving force is the need, and the direction is towards a perceived reward and away from a perceived punishment. Building on this is the Hierarchy of Needs developed by Abraham Maslow in 1954. In summation, the needs of an individual are hierarchical, and the procession up the varying levels of need are successive. For example, a person's physiological needs must be met before they can progress on to safety needs, affection needs, and so on. Manfred Davidson, a scholar of Maslow's work and theorist, adds, ?once primary needs are met, they cease to act as drives and are replaced by needs of a higher order. Higher order needs manifest themselves only when this is the case. Frederick Herzberg presented another major theory of motivation through needs. In 1959, Herzberg and his colleagues asked more than 200 engineers and accountants to describe a job event that caused them extreme satisfaction, and another that caused them extreme dissatisfaction (Herzberg, Mausner and Snyderman, 1967.) He found that factors causing satisfaction dealt with job content, and those causing dissatisfaction descried the job environment. Herzberg called the job content factors motivators and the job environment factors hygiene factors. More striking was his observation that an absence of motivators produced no satisfaction but also no dissatisfaction; it produced a state of neutrality. Also, fulfilling the hygiene factors eliminated dissatisfaction but did not satisfy. The results have come to be known as the Motivation-Hygiene theory or the Dual Factor Theory (Shipley and Kiely, 1988.) Although these experiments showed the motivating factors present in the workplace for professional and industrial workers, there was little data involving hospitality workers until Kwame Charles and Lincoln Marshall explored the motivational preferences of workers in Caribbean hotels. An interesting point that was determined from the study was that the top motivational factors for workers in this industry differed greatly from their counterparts in earlier surveys. The results showed that the top motivators were good wages and better working conditions. When Simons and Enz

Karl Doenitz - Bio of World War II German Naval Commander

Karl Doenitz - Bio of World War II German Naval Commander The son of Emil and Anna Doenitz, Karl Doenitz was born at Berlin on September 16, 1891. Following his education, he enlisted as a sea cadet in the Kaiserliche Marine (Imperial German Navy) April 4, 1910, and was promoted to midshipman a year later. A gifted officer, he completed his exams and was commissioned as an acting second lieutenant on September 23, 1913. Assigned to the light cruiser SMS Breslau, Doenitz saw service in the Mediterranean in the years prior to World War I. The ships assignment was due to Germanys desire to have a presence in the region following the Balkan Wars. World War I With the commencement of hostilities in August 1914, Breslau and the battlecruiser SMS Goeben were ordered to attack Allied shipping. Prevented from doing so by French and British warships, the German vessels, under the command of Rear Admiral Wilhelm Anton Souchon, bombarded the French Algerian ports of Bà ´ne and Philippeville before turning for Messina to re-coal. Departing port, the German ships were chased across the Mediterranean by Allied forces. Entering the Dardanelles on August 10, both ships were transferred to the Ottoman Navy, however their German crews remained aboard. Over the next two years, Doenitz served aboard as the cruiser, now know as  Midilli, operated against the Russians in the Black Sea. Promoted to first lieutenant in March 1916, he was placed in command of an airfield at the Dardanelles. Bored in this assignment, he requested a transfer to the submarine service which was granted that October. U-boats Assigned as a watch officer aboard U-39, Doenitz learned his new trade before receiving command of UC-25 in February 1918. That September, Doenitz returned to the Mediterranean as commander of UB-68. A month into his new command, Doenitzs u-boat suffered mechanical issues and was attacked and sunk by British warships near Malta. Escaping, he was rescued and became a prisoner for the wars final months. Taken to Britain, Doenitz was held in a camp near Sheffield. Repatriated in July 1919, he returned to Germany the following year and sought to resume his naval career. Entering the Weimar Republics navy, he was made a lieutenant on January 21, 1921. Interwar Years Shifting to torpedo boats, Doenitz progressed through the ranks and was promoted to lieutenant commander in 1928. Made a commander five years later, Doenitz was placed in command of the cruiser Emden. A training ship for naval cadets, Emden conducted annual world cruises. Following the re-introduction of u-boats to the German fleet, Doenitz was promoted to captain and given command of the 1st U-boat Flotilla in September 1935 which consisted of U-7, U-8, and U-9. Though initially concerned about the capabilities of early British sonar systems, such as ASDIC, Doenitz became a leading advocate for submarine warfare. New Strategies and Tactics In 1937, Doenitz began to resist the naval thinking of the time which was based on the fleet theories of American theorist Alfred Thayer Mahan. Rather than employ submarines in support of the battle fleet, he advocated for using them in a purely commerce raiding role. As such, Doenitz lobbied to convert the entire German fleet to submarines as he believed that a campaign dedicated to sinking merchant ships could quickly knock Britain out of any future wars. Re-introducing the group hunting, wolf pack tactics of World War I as well as calling for night, surface attacks on convoys, Doenitz believed that advances in radio and cryptography would make these methods more effective than in the past. He relentlessly trained his crews knowing that u-boats would be Germanys principal naval weapon in any future conflict. His views frequently brought him into conflict with other German naval leaders, such as Admiral Erich Raeder, who believed in the expansion of the Kriegsmarines surface fleet. World War II Begins Promoted to commodore and given command of all German u-boats on January 28, 1939, Doenitz began to prepare for war as tensions with Britain and France increased. With the outbreak of World War II that September, Doenitz possessed only 57 u-boats, only 22 of which were modern Type VIIs. Prevented from fully launching his commerce raiding campaign by Raeder and Hitler, who desired attacks against the Royal Navy, Doenitz was forced to comply. While his submarines scored successes in sinking the carrier HMS Courageous and the battleships HMS Royal Oak and HMS Barham, as well as damaging the battleship HMS Nelson, losses were incurred as naval targets were more heavily defended. These further reduced his already small fleet. Battle of the Atlantic Promoted to rear admiral on October 1, his u-boats continued attacks on British naval and merchant targets. Made a vice admiral in September 1940, Doenitzs fleet began to expand with the arrival of larger numbers of Type VIIs. Focusing his efforts against merchant traffic, his u-boats began to damage the British economy. Coordinating u-boats by radio using encoded messages, Doenitzs crews sank increasing amounts of Allied tonnage. With the entry of the United States into the war in December 1941, he commenced Operation Drumbeat which targeted Allied shipping off the East Coast. Beginning with only nine u-boats, the operation scored several successes and exposed the US Navys unpreparedness for anti-submarine warfare. Through 1942, as more u-boats joined the fleet, Doenitz was able to fully implement his wolf pack tactics by directing groups of submarines against Allied convoys. Inflicting heavy casualties, the attacks caused a crisis for the Allies. As British and American technology improved in 1943, they began to have more success in combating Doenitzs u-boats. As a result, he continued to press for new submarine technology and more advanced u-boat designs. Grand Admiral Promoted to grand admiral on January 30, 1943, Doenitz replaced Raeder as command-in-chief of the Kriegsmarine. With limited surface units remaining, he relied on them as a fleet in being to distract the Allies while focusing on submarine warfare. During his tenure, German designers produced some of the most advanced submarine designs of the war including the Type XXI. Despite spurts of success, as the war progressed, Doenitzs u-boats were slowly driven from the Atlantic as the Allies utilized sonar and other technology, as well as Ultra radio intercepts, to hunt down and sink them. Leader of Germany With the Soviets nearing Berlin, Hitler committed suicide on April 30, 1945. In his will he ordered that Doenitz replace him as the leader of Germany with the title of president. A surprise choice, it is thought that Doenitz was selected as Hitler believed that the only the navy had remained loyal to him. Though Joseph Goebbels was designated to be his chancellor, he committed suicide the next day. On May 1, Doenitz selected Count Ludwig Schwerin von Krosigk as chancellor and attempted to form a government. Headquartered at Flensburg, near the Danish border, Doenitzs government worked to ensure the loyalty of the army and encouraged German troops to surrender to the Americans and British rather than the Soviets. Authorizing German forces in northwestern Europe to surrender on May 4, Doenitz instructed Colonel General Alfred Jodl to sign the instrument of unconditional surrender on May 7. Not recognized by the Allies, his government ceased to rule after the surrender and was captured at Flensburg on May 23. Arrested, Doenitz was seen to be a strong supporter of Nazism and Hitler. As a result he was indicted as a major war criminal and was tried at Nuremberg. Final Years There Doenitz was accused of war crimes and crimes against humanity, largely relating to the use of unrestricted submarine warfare and issuing orders to ignore survivors in the water. Found guilty on charges of planning and waging a war of aggression and crimes against the laws of war, he was spared the death sentence as American Admiral Chester W. Nimitz provided an affidavit in support of unrestricted submarine warfare (which had been used against the Japanese in the Pacific) and due to the British use of a similar policy in the  Skagerrak. As a result, Doenitz was sentenced to ten years in prison. Incarcerated at Spandau Prison, he was released on October 1, 1956. Retiring to Aumà ¼hle in northern West Germany, he focused on writing his memoirs in entitled Ten Years and Twenty Days. He remained in retirement until his death on December 24, 1980.

An Analysis of the Current Developments in International Advertising Essay - 1

An Analysis of the Current Developments in International Advertising Regulation and the Impact on International Marketing Practice and Consumption - Essay Example Some of the notable marketing aspects include e-marketing, social media marketing, product diversification, repositioning of brands among others. In order to enhance product awareness and customer’s loyalty, global companies such as Coca-Cola, Toyota, General motors, Honda, Apple Incorporation, Pepsi among others have taken wide range of advertisements through satellite television, newspapers, internet and other avenues. This paper gives the analysis of the current developments in international advertising regulations and the impact on international marketing practise and consumption. International advertising involves spreading of messages that are related to a product or a service with an aim of propelling the demand from the existing customers or with the purpose of attracting new consumers. It is important to note that due to the cultural diversity and social aspects in various countries, the way customers perceive or react to an advertisement campaign differs. In this regard, international advertising entails the communicating process that takes into consideration the consumption patterns of the audience, multiple cultures and forms of communication. In the same way, international advertisement has been recognized by international agencies as a profitable business in terms of creating adverts on behalf of organizations. One of the major causes of heated discussion among the advertising managers and academics is advertising standardization. According to the advertising managers, establishment of a comprehensive advertisement campaign entails the identification of local, intrinsic and firm factors that manipulate global advertising. In order to effectively serve the firms that were aimed at operating at an international level, advertising agencies established themselves in various countries. This was based on the high returns that they anticipated by treating the advertising campaigns as business

CRISIS Essay Example | Topics and Well Written Essays - 500 words

CRISIS - Essay Example More so, making decisions for the company will be easy and prompt. Customers for this business are mainly businesspersons and tourists. Therefore, it is vital to understand them, where they come from and challenges they experience while travelling. Further, it will be good to understand what our customers like and what they do not. Thus, for the success our success, our company will need to handle each customer differently because they have different needs and demands. The company will have to provide vital ideas and feedback regarding how the business is conducted. Instead of wasting time and money, the company will develop a simple and economical system that will help us spend less while meeting customers’ demands. It is also imperative to study our competitors’ progress and recognize what has worked for them and what has not. Since the business deals with tourism and hospitality, it will be good to work with tourist industries in order to get more customers. More so, it will be good to develop a list of ideas that will enable the company management to make some tough choices when the customer base is too low. Additionally, partnering with others will help the business grow since it will be easy to get feedback from them on what needs to be done in order to reach out to more customers. Collaborating with others will also save the company’s’ money. Since the company has its objectives, goals, mission and vision, it is time to work and make profits by looking at all those outlined strategies and developing a workable timeline for the business. In this manner, tasks will be accomplished easily because there will be coordination and teamwork. Once this is done, the crisis action plan will be used to ensure that what has been outlined is implemented. It is in regard to the email you send us concerning our plan for the company. We as a company have prepared a crisis action plan to guide us in our operation and help the company overcome this

Definition of statistics Essay Example for Free

Definition of statistics Essay According to Lind, Marchal, and Warhen (2011), the definition of statistics is that it is the science of data. It involves collecting, classifying, summarizing, organizing, analyzing, and interpreting numerical information (Chapter 1). There are different types and levels of statistics. For example Descriptive statistics utilizes numerical and graphical methods to look for patterns in a data set, to summarize the information revealed in a data set, and to present the information in a convenient form. The four elements of descriptive statistical problems are the population or sample of interest, One or more variables (characteristics of the populations or sample units) that are to be investigated, Tables, graphs, numerical summary tools, and the identification of patterns in the data Also there are Inferential statistics that utilizes sample data to make estimates, decisions, predictions, or other generalizations about a larger set of data. There are 5 elements of inferential statistical problems: The population of interest, one or more variables (characteristics of the population units) that are to be investigated, the sample of population units, the inference about the population based on information contained in the sample, and a measure of reliability for the inference. When it comes to the role of statistics in business decision making it is applied in many ways in terms of consumer preferences or even financial trends. For example, managers across any type of business unit formulate problems, they decide on a question relating to the problem and then form a statistical formulation of the question is used to determine answers to all of the above. An example of a business question may be how many calls are answered on average in a call center and how can we increase the numbers of calls answered per hour. Another example may be how we can increase the number of accounts we open each week, and who is opening the Most accounts  and what is it that is aiding in the success of those individuals. Clearly there are many questions but determining the right questions that can be measured with statistical data is key to getting the right answers. References Lind, D. A., Marchal, W. G., Warhen, S. A. (2011). Basic Statistics for Business Economics (7th ed.). Retrieved from The Univeristy of Phoenix eBook Collection database.

Essay --

1. Operational Strengths and Weaknesses a. Horizontal Analysis This type of analysis compares the percent and amount of changes from year to year. The analysis is performed on both the income statement and balance sheet to detect trends and identify any issues. This can be a very useful analysis especially when more than two years of data is available. With this analysis and various others a good understanding of how the company is operating can be seen. Revenue Section The income statement shows both strengths and weaknesses. There is a jump in net sales from year 6 to year 7 by 33%; this is a substantial increase for the company and strength. In year eight compared to year seven, the company has seen a decrease in net sales by 15%. Net sales show to be rather unstable and a possible source of weakness as well. The reduction in revenue is ultimately due to the current economic situations; which could be attributed to funding cuts by sponsors for some of the riders. This kind of up and down in net sales may be common for the company over the years to come. The company should also consider having a product to balance this out. Since their main source of sales is a specialty item it would benefit the company to have additional products that are more main stream to even out sales in the future. However, unit sales will most likely stay below year sevens high of 4,342,000, it is expected that unit sales will increase over the next three years to make up for its decline in year eight. Cost of good sold has moved with the net sales, which is a positive note. This means the company is not spending more on products than sales allow, and purchasing is projecting accurately. However, there may be opportunity for the company to reduce the ... ...to reduce interest can help increase this ratio, as well as increasing sales. Overall all in the ratio analysis the company has several areas of strengths and several areas of weakness. It would benefit the company to reduce their expenses and increase sales to improve these numbers over time. The company is also struggling to keep up with competitors in several areas, and much of that could be combated with increased sales and better expense control. 2. Working Capital Currently Competition Bike Inc. working capital is positive. The company has more assets than they do liabilities. The company has seen a decrease in their assets in the last year but the company’s liabilities have also decreased. The company’s working capital ratio has remained around 2.1 for the last three years. This is very positive for the company, a ratio between 1.2 to 2.0 is recommended.

Obscenity Law

The vague, subjective, and indeterminate nature of Canadian obscenity law has been called â€Å"the most muddled law in Canada. † Recognizing that consistency and objectivity are important aspects in the running of any successful legal system, the Supreme Court of Canada has attempted to systematically clarify and modernize obscenity law. The ruling in R. v. Butler marked the transformation of the law of obscenity from a â€Å"moral-based† offence to a â€Å"harm-based† offence. The courts are now asked to determine, as best they can, what the community will tolerate others being exposed to, on the basis of the degree of harm that may flow from such exposure. Harm, in this context, means the predisposition to antisocial conduct. When probing beyond superficial appearances, it is clear that the modernizing moves made by the Canadian judiciary, in introducing the community standard of harm test to enforce obscenity law, are mere rhetorical covers for the continued protection of conventional morality. The determination of â€Å"community standards† is left primarily to the subjective judgment and hunches of criminal justice personnel. In this context, the standard to which obscenity laws are based can be uncertain and ill defined, making it very difficult to ensure consistency in the application of the obscenity law and to ask the public to abide by standards that are not clearly demarcated in the first place. This is a disturbing state of affairs for any criminal offense. This essay will firstly demarcate the roles in which judges currently play in deciding upon the nature of crime. Secondly, with the use of previous rulings on obscenity by the Supreme Court of Canada, the evolution of Canadian obscenity law will be analyzed. Thirdly, the involvement of the community standard of tolerance within the current obscenity definition will be flagged as prejudiced against non-mainstream minority representations of sex and sexuality. Fourthly, the Butler decision will be analyzed within the gay and lesbian context. Finally, the three inherent flaws of the current Butler definition of obscenity will be discussed; the vague definition of harm, the problematic categorization of â€Å"degrading and dehumanizing sex† and the overemphasis placed on heterosexual norms. The current roles in which judges play in deciding upon the nature of crime. Frey v. Fedoruk (1950), a decision made by the Supreme Court of Canada, is iewed as a very successful step in the courts’ quest for objectivity. This supposed milestone case marked the end of the courts’ ability to invent new crimes at common law and essentially appointed ultimate power of the Criminal Code to the federal government. Frey was accused of peeping into the window of a changing woman. The courts recognized that peeping was clearly morally objectionable, but the Court also noted that peeping was â€Å"not otherwise criminal and not falling within any category of offences defined by the Criminal Law. It went on further to say that â€Å"if any course of conduct is now to be declared criminal, which has not up to the present time been so regarded, such declaration should be made by Parliament and not by the Courts. â€Å"[i] This case essentially set the precedent that no person could be charged with an offence that was not previously stipulated in the Criminal Code. This case illustrates an evident shift in regards to the role judges play in the justice system; however, it is questionable if this shift is as substantial as originally perceived. Something that is often forgotten by those who stress the sovereign aspect of the criminal law is that Parliament does not have direct control over the enforcement of their own texts. Judges cannot directly contradict or invent new laws, but they can endlessly reinterpret them. Furthermore, in interpreting the criminal law, judges do not have control over the way in which fellow criminal justice personnel will reinterpret their interpretations. For example, due to the vagaries involved in Justice Sopinka’s ruling in R. v. Butler, criminal justice personnel have been given discretionary power that has resulted in the differential and unlawful targeting of gay and lesbian pornographic material. In arguing for judicial objectivity, one could argue that judges are only allowed to interpret law in accordance the intention of Parliament when the section was enacted or amended. Judges cannot adopt the shift in purpose doctrine, which was explicitly rejected in R. v. Big M Drug Mart Ltd. [ii]† However, in order to avoid running a foul of the shifting purpose argument, judges can use vague and indeterminate language that will only require the need for reinterpretation in the future and further the use of judicial subjectivity. When interpretations are required it opens the doors to the, subconscious or conscious, implementation of subjective standards of morality by judges or riminal justice personnel. Essentially different judges will interpret the law in different ways, which stresses the importance for clarification and specification within the Criminal Code. It has also been argued that the decision in Frey v. Fedoruk allows for citizens to know in advance if they are committing a crime. As seen in the Butler case, many laws in the Criminal Code continue to be vague and indeterminate, requiring the need for judicial interpretations. The vagaries of the obscenity law allow judges, police and customs officers, to interpret the law in a way that may encompass material or actions that were not specifically stipulated under the law itself. The evolution of Canadian obscenity law: Upon examination of the progression of Canadian obscenity law it is clear that the modernized obscenity law remains riddled with some of the same problems inherent to its predecessors. The law of obscenity in Canada has its roots in English law. The 1868 decision of the House of Lords in R. v. Hicklin was the leading case and set out a test for obscenity. In upholding an order for the destruction of a publication, Chief Justice Cockburn declared, â€Å"I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall. â€Å"[1] This definition had been criticized for its disregard of serious purpose or artistic merit in the impugned material and for its excessive dependence on subjective speculations made on the part of the trier of fact. This was the test used in Canada until the Criminal Code was amended in 1959 to include a definition of obscenity as â€Å"the undue exploitation of sex, or of sex and any one or more of crime, horror, cruelty and violence. † Canadian courts then shifted their focus from the proper application of the Hicklin test to the understanding of how the â€Å"undue exploitation of sex† is to be recognized. Brodie was the first obscenity appeal to come before the Supreme Court of Canada following the amendment. Judson J. , during his explication of this ection, was conscious of the criticism that had been leveled against the Hicklin test and was subsequently trying to avoid its downfalls. Judson J. expressed the view, in light of the amendment, † that all the jurisprudence under the Hicklin definition is rendered obsolete† and that the new definition gave the Court â€Å"an opportunity to apply tests which have some certainty of meaning and are capable of objective a pplication, which do not so much depend as before upon the idiosyncrasies and sensitivities of the tribunal of fact, whether judge or jury†[2] . Two tests were purposed throughout the trial that were thought capable of objectively recognizing the â€Å"undue† exploitations of sex. The first test focused on the â€Å"internal necessities† of the work in question. The second test was â€Å" the community standard test. † He recognizes that community standards may vary from time to time, but held that there is a general instinctive standard of decency, which prevails in any given community. What is obscene is material that offend that standard. The development of the jurisprudence post-Brodie had elaborated upon this notion of â€Å" community standard. â€Å"It has been said to be: a general average of community thinking and feeling; a national standard; one where judges are entitled to judge for themselves, without expert evidence, when this standard has been exceeded. † However, a substantial development in the test for obscenity occurred in the Supreme Court of Canada’s decision in Towne C inema Theatres Ltd. v. The Queen. [3] In this decision, the court stated that the â€Å"community standard of tolerance† is only one way in which the exploitation of sex can be determined â€Å"undue. The Court recognized the imperfections of society and the subsequent possibility that the community could tolerate publications that cause harm to members of society. The court went on to say that â€Å" even if, at certain times, there is a coincidence between what is not tolerated and what is harmful to society, there is no necessary connection between these two concepts. † [4] Thus, the legal definition of â€Å" undue† was made to encompass publications that were harmful to members of society and consequently society as a whole. Material was deemed harmful if it portrayed persons in a â€Å"degrading or dehumanizing† way. Obscenity also continued to be assessed against â€Å" community standards. † This test was concerned, not with what Canadians would tolerate being exposed to themselves, but what they would tolerate other Canadians being exposed to. It was a test concerned itself with tolerance and not taste. R. v. Butler- the current definition of obscenity. The Supreme Court of Canada made its definitive decision in R. v. Butler. The case of R. v. Butler concerned the constitutionality of the obscenity provisions (now s. 63) of the Criminal Code of Canada. The provisions were under consideration on the grounds that they infringed upon a guaranteed right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms. The case is monumental in determining whether, and to what extent, Parliament can justifiably criminalize obscenity. On appeal to the Supreme Court of Canada, the following constitutional questions were raised: 1. Does s. 163 of the Criminal Code violate s. 2(b) of the Charter? 2. If s. 163 of the Criminal Code violates s. 2(b) of the Charter . Can s. 163 of the Criminal be demonstrably justified under s. 1 of the Charter as a reasonable limit prescribed by law? Before answering the main constitutional questions, Justice Sopinka, writing for the majority, firstly attempted to clarify and interpret what the impugned legislation was intended to signify. In deciding what constitutes the â€Å"undue† exploitation of sex, the court examined the three workable tests used in past cases of obscenity: the â€Å" community standard test†; the degrading or dehumanizing† test; and the â€Å" internal necessities test. The review of this jurisprudence showed that the relationship between each of the three tests failed to be clear or specific. Sopinka divided pornography into three categorie s: 1) explicit sex with violence; 2) explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing; 3) explicit sex that is without violence and is neither degrading or dehumanizing. Sopinka used these three categories as the guidelines in determining what constitutes the undue exploitation of sex. Sopinka essentially merged the community standard of tolerance test together with the harm principle. The courts now need to figure out what the community would tolerate others being exposed to on the basis of the degree of â€Å"harm† that may flow from such exposure. Harm, in this context, signifies material that would predispose viewers to antisocial conduct. The first category of pornography was found to always constitute the undue exploitation of sex, the second category of pornography was found to sometimes constitute the undue exploitation of sex and the third category generally did not qualify to be the undue exploitation of sex. [5] Problems with the Community Standard of Tolerance test: It has been suggested that the modern obscenity test, the merger of the community standard of tolerance test and the harm principle, is liberal relative to its predecessor (the Hicklin test). On the surface it seems to draw on the more liberal attitudes of contemporary society about sexual representation and has the flexibility to evolve with the changing norms of communities through time. However, it cannot be forgotten that the community standard test of harm is delineated on the standards held by the majority, enforcing only the majority’s view of what is harmful and obscene. The imposition of majority views on other members of society is seen as the most serious threat to liberty in a democratic state, and seems to contradict the multicultural dogma that is representative of Canadian society. Subsuming a majority analysis into the definition of obscenity, unavoidably creates prejudice against non-mainstream minority representations of sex and sexuality. Usually, the tolerance level of a community is difficult to measure, requiring the courts to essentially guess as to how much â€Å"harm† a community as a whole would tolerate. It was held that evidence of community standards is desirable, but not essential. The lack of proof for a community standard furthers the vulnerability of minority groups. Fundamentally, judges can provide the court with a fictional interpretation of a community’s standard of tolerance. No matter how honest such an interpretation could be, it runs the risk of being false without the judge having to formally justify his/her findings. The community standard of tolerance of any given community, Professor Richard Moon says in regards to the Butler ruling, is â€Å"judicial subjectivity (value judgment) simply dressed up in the objective garb of ommunity standards†. [6] Furthermore, community standards only make sense in relations to a prevailing, and generally accepted understanding of sexual morality, in which some sex is good and some is not. Not withstanding the court’s best efforts to cast the objective of the law as the prevention of harm, particularly of harm towards women, the underlying sexual morality and the exclusive focus on heterosexu al relationships shapes the way in which the s. 163 is applied throughout the criminal justice system. It is within the context of gay and lesbian materials that the distinction between morality and harm is most difficult to sustain†, and that we can most clearly see the extent to which obscenity laws are still predicated on the legal regulation of sexual morality. Butler decision in the gay and lesbian context: The Littler Sisters Case: Throughout his judgment, Sopinka J. provides an implicit message for the need to protect females against male violence. A common thread woven throughout out many heterosexual relations is the idea of an aggressive and powerful male and a passive and subordinate female. Therefore, Sopinka J. ’s understanding of harm is set in a heterosexual framework. Gay and lesbian sexual representations are not produced within the heterosexual framework of the more mainstream pornography to which the Butler decision addressed itself. Realistically speaking, how would men watching pictures of men having sex with men, contribute to the type of harm to women identified in Butler? However, these gay and lesbian sexual representations of sexuality have been targeted, charged and found guilty pursuant to the â€Å"modernized† Butler test for obscenity. The gay and lesbian community have argued, â€Å"that gay or lesbian sexual representations have absolutely nothing to do with the harm towards women associated with heterosexual pornography. â€Å" (quote red book . pg 128 ) Interestingly, Carl Stychin, has contended, that the sexually explicit images of gay male pornography do not reinforce patriarchal male sexuality, but rather directly challenge dominant constructs of masculinity by displacing the heterosexual norm. (quote) It would seem warranted to suggest that since gay and lesbian sexual epresentations do not operate within a heterosexual framework, that these images cannot and should not be measured against a heterosexual norm. The constitutionality of provisions located under the Canadian Customs Act, who operate in accordance to Butler’s definition of obscenity, was questioned, in the context of gay and lesbian culture, in the Supreme Court of Canada’s decision in Little Sisters Book and Art Emporium v. Can ada. This case was the culmination of several instances where customs officials had unlawfully targeted gay and lesbian sexually explicit materials. Little Sisters Book and Art Emporium carried a specialized inventory catering to the gay and lesbian community. The store imported 80 to 90 percent of its erotica from the United States. Consequently, the vast majority of their erotica was susceptible to Customs censorship powers. Code 9956(a) of Schedule VII of the Customs Tariff prohibits the importation of â€Å"books, printed paper, drawings, paintings, prints, photographs or representations of any kind that . . . re deemed to be obscene under subsection 163(8) of the Criminal Code†. (quote little sister) The Supreme Court of Canada did acknowledge the fact that Customs officials had subjected the appellant to differential treatment when compared to importers of heterosexually explicit material. The treatment was dismissive of the â€Å" appellants’ charter rights under s. 15 (1) of the Charter as they were not given the equal â€Å"benefit of a fair and open customs procedure. † However, the source of the s. 5(1) Charter violation was not identified as the customs legislation itself, since there is nothing on the face of the Customs legislation or in its necessary effects, which contemplates or encourages differential treatment based on sexual orientation. The unlawful differential treatment had been made at the administrative level in the implementation of the legislation. The court held that â€Å"Parliament is entitled to proceed on the basis that its enactments will be applied constitutionally by the public service. As stated by the Court, â€Å"The fact that a regulatory power lies unexercised provides no basis in attacking the validity of the statute that conferred it. † The Court held that the Customs legislation infringes s. 2(b) of the Charter, with exception of the reverse onus provision in s. 152(3) of the Customs Act. However, the legislation constituted a reasonable limit prescribed by law, justified under s. 1 of the Charter. The court trusted Customs to identify and implement the needed changes, and the burden of monitoring compliance was left to future litigations. quote Osgood hall law journal) Thus, the majority absolved Parliament of any constitutional obligation to ameliorate this obviously flawed legislative regime of border censorship. By upholding the legislation, and simultaneously affirming the differential treatment unfairly imposed on Little Sisters Book and Art Emporium by Customs, the Court has projected itself as the defender of sexual pluralism and has not done enough to reduce the likely risk that over-censorship will reoccur. Vague conception of Harm It has been shown, most specifically in the case of Frey v. Fedoruck, that the Supreme Court of Canada has been trying to limit the power of appointed judges and consequently reserve the power over the Criminal Code for Parliament. In the Little Sisters case the Court admittedly held that â€Å"A large measure of discretion is granted in the administration of the Act, from the level of the Customs official up to the Minister, but it is well established that such discretion must be exercised in accordance with the Charter†. Ideally, all criminal justice personnel should exercise discretionary power in accordance to the Charter, but whether done mistakenly or purposely this is not always the case, which has historically given reason to the clarification or amendments of the law. Since criminal justice personnel are only human, and prone to error, the use of safeguards within the criminal code, in the form of clear and definite laws, is necessary to protect against judicial subjectivity. The majority opinion in the Butler case, includes validation of Littler Sister’s struggles and denunciates Custom’s discriminatory and excessive censorship practices. Although the ruling did include positive sentiments, it ignored the possibility that the law had something to do with Custom’s failures. The Court disproportionately blames the acts of individual custom officers, or those functioning at the administrative level in the implementation of the legislation, for the over-censorship of gay and lesbian material. However, the faulty administration of the discretionary powers conferred on officials by the Act can be a symptom of the underlying root problem: the vague community standard of harm test for obscenity. The Court defended their inaction on â€Å"the fact that the face of the Customs legislation or in its necessary effects, does not contemplates or encourages differential treatment based on sexual orientation†. Regardless of how promising a law looks on paper if it lacks consistency and objectivity in its application and demonstrates significant procedural deficiencies it should be brought into question. On a supposed quest for objectivity, Sopinka held that there should be a shift in focus from morality to harm when testing for obscenity. Harm, in this case, was defined as the risk of â€Å"anti social behavior,† (ie the mistreatment of women). â€Å"Anti-social conduct for this purpose is conduct which society formally recognizes as incompatible with its proper functioning. †[iii] Although the Supreme Court has provided us a fair amount of guidance on how the issue of obscenity is to be dealt with, it has provided a rather ambiguous concept of harm that continues to give appointed judges, and in this case Customs officers, a fair amount of discretionary power and opens the doors to subjective standards of morality. The ambiguous conception of harm has already posed problems in regards to enforcement. For example, obscenity laws have adversely affected those importing gay or lesbian erotica in comparison to other individuals importing comparable publications of heterosexual nature. [iv] Being a piece of legislation that admittedly violates our right to freedom of expression, one would think that s. 163 would be held to a higher standard of clarity. Since the definition of harm is relatively vague it can unfairly persecute the gay community, holding gay pornography to a lower standard of tolerance than heterosexual pornography. During Sopinka’s Charter analysis, he goes on to say that there is no need for proof of harm or evidence of a causative link between the obscene material and the feared social harm. This is because social harm is so difficult to prove or measure. On the one hand such a finding could be welcomed since the court has developed a test that is sympathetic to the inequality and oppression of women. However, on the other hand this loose standard of evidentiary burden, which the government must satisfy in order to justify its infringement of freedom of expression, together with a rather ambiguous definition of harm, raises the critical question as to what types of materials will be targeted. It is very important for the criminal code to be subject to a standard of heightened clarity and transparency (more so than the Charter), so that citizens can know in advance if they are committing a crime. Studies on the causal link between pornography and attitudinal harm: In the case of R. v. Butler, when deciding the second constitutional question (s. 1 analysis), Sopinka held that the prevention of harm likely to arise from the distribution of certain obscene materials constitute a sufficiently â€Å"pressing and substantial† objective to warrant some limitations on s. 2(b) of the Charter. Sopinka made clear that while parliament cannot impose subjective standards of sexual morality it can impose the morality of the majority when it coincides with the morality of the charter. This can be done to maintain values integral to a democratic society. In terms of proportionally, there are three aspects. Firstly, it was asked whether there was a rational connection between the impugned measures and the objective. The courts held that it is reasonable to assume a causal relationship between the exposure to obscene material and the risk of negative attitudinal changes (i. e. harm) in the absence of concrete proof. Secondly, Sopinka found that there was minimal impairment of the right to freedom of expression as the legislation aims only to restrict material that poses a risk of harm to society. Furthermore, material that has artistic merit will not be criminalized. Finally, the court found that there was a proper balance made between the effects of the limited measures and the legislative objective. It was found that the limits placed on the right to freedom of expression was not outweighed by the important legislative objective that was aimed at avoiding harm. Thus, the Court held that the prohibition against pornography contravenes the freedom of expression guarantee in section 2(b) of the Charter, but went on to hold that the section could be demonstrably justified under section 1 of the Charter as a reasonable limit prescribed by law. The section 1 issues raised in the Littler Sisters case related to the substance of the obscenity prohibition and the procedures by which it is enforced. The former had been fully articulated and defended by the Court in the Butler ruling, so it was not surprising that the challenge to the content of the obscenity standard itself failed. The degree to which Sopinka J defended the constitutionality of s. 163 and thus the s. 1 analysis raised by the regime f Customs censorship on the avoidance of attitudinal harm is disproportionate in comparison to the likelihood that such harm actually exists. It is very difficult to find any proof that pornography can be the cause of attitudinal harm amongst its viewers. There have been two attempts and potential sources of such proof: statistical evidence and experimental evidence. Statistical evidence attempts to show a correlation between the prevalence of pornography and the incidence of violent crime. Statistical evidence has been unable to establish a causal link between pornography and violence. Some research has purported to show that many rapists report having had little exposure to pornographic material. Furthermore as technology has become increasingly sophisticated in recent years, there has been a dramatic increase in the availability of pornography over the internet. Despite growing concerns, it has been proven extremely difficult to censor or detect the distribution of â€Å"obscene† pornographic material. Despite the probable increase in access to â€Å"obscene† material, the rate of sexual assault has not increased significantly more than those of other forms of crime. Experimental studies have come the closest in claiming a causal link between violence and pornography. Some work has shown that, under laboratory conditions, there may be a measurable relationship between aggressive behavior and exposure to aggressive pornography. However, such experiments are inherently artificial, as the circumstances are essentially fabricated. Therefore the findings in these experiments cannot be directly transferable from the laboratory into the real world, where inhibitions and public scrutiny affect social behavior. Furthermore, not all studies focus on the negative effects of pornography on viewer’s social behavior. Some support the theory that pornography can serve as a safety mechanism, allowing its viewers to satisfy aggressive impulses in a non violent way. This theory, along with the theory that pornography induces aggression, has been discredited and remains improvable. Although discredited, such a theory remains equally as plausible as the theory endorsed throughout the Butler case: that pornography induces attitudinal harm. It is unclear as to why obscenity should be defined almost exclusively around the prevention of something that could be complete fiction. In the absence of conclusive scientific evidence, it could be argued that s. 163 represents and arbitrary infringement upon our freedom of expression. It is difficult to see how the court deemed the objective of the law to be â€Å"pressing and substantial† in the absence of demonstrable proof and in the presence of empty assumptions. In the absence of proof of harm, whether material is obscene becomes a matter of faith and not evidence. Such an ambiguous definition of harm can be understood as a disingenuous effort by the court to decide what the impugned legislation was intended to mean. It could be argued that Justice Sopinka was instead formulating his judgment in regards to what he thinks the legislation should mean now. â€Å"The appellant argued that to accept the objective of the provision as being related to the harm associated with obscenity would be to adopt the shift in purpose doctrine which was explicitly rejected in R. v. Big M Drug Mart Ltd. † [v]Sopinka argues that the original purpose remains as it was in 1959: â€Å"protection of harm caused by obscene material. However, when the legislation was first enacted, it was concerned primarily with the corruption of morals and not precisely the victimization of women. Such a vague definition of harm allows the courts to justify the infringement of a Charter right on the basis of a different argument of the time and not on the basis of why the law was created in the first place. Overemphasis placed on the protection of women The obscenity test in Butler, who adversely effected the Customs Act, seems to further reinforce women’s marginalized role as crime victims as well as men’s repugnant roles as crime perpetrators. Although this ruling is meant to essentially promote equality amongst men and women, it seems as though it has completely ignored the hardships existent in same sex relationships. Throughout this judgment Sopinka provides an implicit message for the need to protect females against male violence. After such an emphasis has been placed on the protection of women, and in the absence of conventional or homophobic morality displayed by custom officers, it is questionable as to whether s. 163 would allow pornographic material portraying explicit sex and violence against men to escape criminality. Although it is very important for the law to apply equally to all citizens, as stated in s. 15(2) of the Charter it is not unconstitutional to take affirmative action to help previously disadvantaged groups such a women. In reality women run the risk, more so then men, to be victimized because of pornography. Victims of sexually based offences are disproportionately female in comparison to male. However, the types of harm that can be aggravated by obscenity, discussed throughout the Butler case, can exist in all types of human relationships regardless of sexual orientation or the individuals involved. Gays and lesbian relationships are susceptible to the same physical, sexual and mental abuse in much the same ways that heterosexual relationships do. This in essence shows that the judgment was based primarily on heterosexual norms, running the risk of ignoring other possible victims of obscenity. It is this lack of recognition of homosexuals within the leading interpretation of the obscenity law that can either cause the over-censorship or under-censorship of homosexual material, both being equally problematic to the homosexual community. Problematic categorization: In an effort to further clarify the obscenity provisions in the Criminal Code Sopinka devised a three-tier categorization of pornographic material. Sopinka concluded that material that fell within the second category of; â€Å"explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing† could be considered undue. The categorization of â€Å"degrading and dehumanizing† is elusive and vulnerable to subjective or even discriminatory evaluations. The flexibility provided in the second category can be translated into inconsistencies within the legal process. Providing a category that â€Å"could† be viewed as obscene seems to dilute what was meant to be an objective guideline to be followed when testing for obscenity. The selling of material that falls within the second category is essentially equivalent to gambling since there is no certainty as to whether the selling of such material would or would not constitute a criminal offence. One could argue that the sellers of the questionable material could themselves determine the standard of tolerance of a community in determining whether the material that they are selling is obscene. However, one person’s interpretation of what the community would tolerate might be radically different from that of the courts’. â€Å" The potential subjectivity is suppose to be reined in by reference to â€Å" community standards of tolerance†. (ossgood) Since judges determine this standard on their own, in the absence of proof of such a standard, it is hard to see how they will act as a legitimate constrain of judicial subjectivity. What the current obscenity definition has trouble demarcating in obscenity as a narrow category of sexually explicit material. To remedy this situation it would have been beneficial to introduce additional categories of pornography that were more specific and detailed than the ones currently offered. Additional categories would force the court to specify what material in the second category would and would not pose a substantial risk of harm. This would have further objectified the test for obscenity because the discretion of individual trial judges would be reduced when it came to dealing with pornographic material falling within the second category. Judges and other criminal justice personnel would be required to sort material in the devised categories instead of deciding independently what they feel the community would tolerate on the basis of harm. This would also seem to provide the general population with a better understanding of lawful vs. unlawful pornographic material. Implicit to Sopinka’s categorization of pornographic material is the idea that there is a distinct difference between soft porn and hard porn when it omes to what will cause social harm. Sopinka holds throughout his judgment that the objective of s. 163 is to provide protection against what could cause the â€Å" abject and servile victimization† of women. He is assuming that the dissemination of soft porn will not pose the same risk of social harm to women as the categories of explicit sex with violence or explicit sex that is degrading or dehumanizing. However, any pornographic representation of women can be considered to be a systematic ob jectification. As Justice Gonthier wrote for the dissent of the Butler case, â€Å"even if the content is not as such objectionable†¦. the manner in which the material is presented may turn it from innocuous to socially harmful. †[vi] Both soft porn and hard porn (all three categories) could thus contribute to women’s subordination and inequality in society. It is clear that Sopinka’s test for obscenity does not necessarily lock up with its purpose of protecting women from antisocial behavior and inequalities and could serve as evidence of an appeal to conventional standards of sexual morality. Modest and restrained depictions of sexual activity were permitted in accordance to an implicit hierarchy of conventional moral values and not on the basis of harm. (does that make sense? ) The â€Å"internal necessities test† can also be questioned in terms of Sopinka’s harm based obscenity test. Pornographic representation found in art and literature can be just as harmful as what is found in, what is now understood to be, pornography. Therefore, it seems as though material that could be dehumanizing and degrading and thus cause significant social harm could pass the test for obscenity devised by the court. By not leaving behind the view that representations of sex are bad if not redeemed by art or some other higher social purpose, the definition of obscenity remains vague and open ended. The Customs administration of the obscenity prohibition at the border and the general over-censorship of homosexual pornographic material, confirm that the Butler definition of obscenity is open to multiple interpretations and makes room for the affirmations of old prejudices. In the Littler Sisters ruling, the Court denied that these problems existed, and instead relied upon an idealized portrait of the community standard test that will llegedly force criminal justice personnel towards judicial objectivity. It has been proven that the community standard test is based primarily on the views of the majority and does not necessarily constitute a â€Å"guarantee of tolerance for minority expression†. In actuality society, while becoming more liberal, is still deeply entrenched with prejudices again st minorities especially throughout the criminal justice system, stressing the need for clear and definitive language used within the Criminal Code and court process.