R v Sharpe

R v Sharpe, 2001 SCC 2 is a constitutional rights decision of the Supreme Court of Canada. The Court balanced the societal interest to regulate child pornography against the right to freedom of expression possessed by the defendants under section 2 of the Canadian Charter of Rights and Freedoms; holding, that while general prohibition of child pornography was constitutional, there were significant limits imposed by the Charter. The decision overturned a ruling by the British Columbia Court of Appeal.

R v Sharpe
Hearing: January 18, 19 2000
Judgment: January 26, 2001
Full case nameHer Majesty The Queen v John Robin Sharpe
Citations2001 SCC 2, [2001] 1 SCR 45
RulingAppeal allowed, charges remitted to trial.
Court membership
Chief Justice: Beverley McLachlin
Puisne Justices: Claire L'Heureux-Dubé, Charles Gonthier, Frank Iacobucci, John C. Major, Michel Bastarache, Ian Binnie, Louise Arbour, Louis LeBel
Reasons given
MajorityMcLachin CJ (paras 1–130), joined by Iacobucci, Major, Binnie, Arbour and LeBel JJ
ConcurrenceL'Heureux-Dubé, Gonthier and Bastarache JJ (paras 131–243)

Background

After police seized 517 photographs of mostly young boys,[1] as well as sexually explicit stories; John Robin Sharpe was charged on two counts of possession of child pornography, and on another two counts of possession with intent to distribute. Sharpe argued that the relevant provision of the criminal code placed an unreasonable limitation on his freedom of expression, and in a ruling the British Columbia Court of Appeal concurred;[2] Justice Duncan Shaw ruled that the law was a "profound invasion" of the freedom of expression and right to privacy found in the Charter. Before its eventual reexamination by the Supreme Court, the decision invited protest, with more than half of the Members of Parliament petitioning the Prime Minister to intervene.[3]

Holding

In its ruling the Supreme Court emphasized the interest of the government to prevent the proliferation of child pornography and upheld its prohibition (reversing the decision to strike down the statute at-large), while also recognizing the importance of "adolescent self-fulfillment, self-actualization and sexual exploration and identity." -(Paragraph 109) and that also commentated "To ban the possession of our own private musings thus falls perilously close to criminalizing the mere articulation of thought. " -(Paragraph 108).

Ultimately the court carved out two exceptions to the power, and law:

"1. Self-created expressive material: i.e., any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use; and

2.  Private recordings of lawful sexual activity: i.e., any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use." -(Paragraph 115).[4]

Aftermath

Ultimately, after the case was remitted, Sharpe received a four-month conditional house arrest sentence, in issuing the sentence Shaw noted "In the eyes of many he has become a pariah, endured six years of this court case and has no criminal record".[1]

References
  1. May 03, CBC News · Posted; May 3, 2002 2:56 AM ET | Last Updated; 2002. "Sharpe sentenced in B.C. child pornography case | CBC News". CBC. Retrieved 2019-01-01.CS1 maint: numeric names: authors list (link)
  2. files.efc-canada.net (PDF) http://files.efc-canada.net/si/Pornography/InnocencePreserved2002.pdf. Retrieved 2019-01-01. Missing or empty |title= (help)
  3. 1956-, Walters, Gregory J. (2001). Human rights in an information age : a philosophical analysis. Toronto: University of Toronto Press. ISBN 9781442675926. OCLC 666910377.CS1 maint: numeric names: authors list (link)
  4. "R. v. Sharpe - SCC Cases (Lexum)". scc-csc.lexum.com. Retrieved 2019-01-01.
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