R. v. Sharpe
Encyclopedia
R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, is a Canadian civil rights decision of the Supreme Court of Canada
. The Court upheld the child pornography
provisions of the Criminal Code of Canada
as a valid limitation of the right to freedom of expression under section 2(b)
of the Canadian Charter of Rights and Freedoms
. In doing so, it reversed a ruling by the British Columbia Supreme Court. That opinion, issued by Justice Duncan Shaw, held that the law was what he called a "profound invasion" of rights of privacy and freedom of expression found in the Charter of Rights and Freedoms. Prior to its reversal by the higher court, the ruling sparked extensive public complaints, and more than half of the Members of Parliament called for action by the Prime Minister to override the ruling.
where he had traveled to meet Edward Brongersma
, a Dutch jurist and open advocate of pederastic
boylove
. Upon return, Canada Customs found a collection of computer discs containing a text entitled "Boyabuse". A later search of his Vancouver apartment revealed a collection of photographs of nude teenage boys, some of them engaged in sexual acts with one another. Sharpe was arrested and charged with illegal possession under s. 163.1(4) of the Criminal Code of Canada
, and for possession for the purposes of distribution or sale under s. 163.1(3) of the Code.
Acting in his own defense, Sharpe challenged the criminal provisions as violation of freedom of expression under section 2(b) of the Charter. Sharpe argued before a court that laws regarding the possession of child pornography violated his freedom of thought and expression. He presented a fairly controversial argument that since he was interested in teenage boys, he should be entitled to pornographic material relating to his sexual interests. Nonetheless, the law he was charged under was eventually upheld with some exceptions regarding written pornography
.
During his trial, the prosecutor argued for the harmfulness of child pornography possession and why it should remain illegal. Sharpe attempted to refute the prosecution's claims that child porn and child sexual abuse are a related paradigm by claiming that the legal attitudes towards pornographic representations of children 'creates a victim' instead of starting with one. The line between production, distribution, and possession was also espoused by Sharpe. He further argued that in many instances possession of child pornography could act as a catharsis
in preventing child sexual abuse. In regard to provisions on written pornography, Sharpe argued that the law in question targeted the political advocacy of pederasty
and served little purpose in protecting children from sexual abuse
. The charges in respect to Sharpe's writings were eventually dismissed when he argued artistic merit with the assistance of an English professor who compared his written works to 'transgressive expression' parallel to Marquis de Sade
's 120 Days of Sodom
.
Beverley McLachlin
, writing for the majority, held that the provision in the Code violated the freedom of expression but was justified under section one as the government objective of protecting children from exploitation was proportional to the violation.
The Court, however, finds that the provisions were too broad for including two types of material that should not constitute child pornography as they do not pose a direct potential harm to children. First, where the written or visual representations were created and possessed by the accused for exclusive personal use, and second, where "visual recordings created by or depicting the accused that do not depict unlawful sexual activity and are held by the accused exclusively for private use."
referenced in later cases for prosecuting people who imported Japanese artwork which was and still is legal in both Japan and the United States where the convicted men imported it from. This precedent referred to Sharpe's stories, and was used as a precedent for convictions of people who possessed images and illustrated stories (manga
, Japanese comics).
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
. The Court upheld the child pornography
Child pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
provisions of the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
as a valid limitation of the right to freedom of expression under section 2(b)
Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. In doing so, it reversed a ruling by the British Columbia Supreme Court. That opinion, issued by Justice Duncan Shaw, held that the law was what he called a "profound invasion" of rights of privacy and freedom of expression found in the Charter of Rights and Freedoms. Prior to its reversal by the higher court, the ruling sparked extensive public complaints, and more than half of the Members of Parliament called for action by the Prime Minister to override the ruling.
Background
It began in 1995 when Sharpe was returning from a trip to AmsterdamAmsterdam
Amsterdam is the largest city and the capital of the Netherlands. The current position of Amsterdam as capital city of the Kingdom of the Netherlands is governed by the constitution of August 24, 1815 and its successors. Amsterdam has a population of 783,364 within city limits, an urban population...
where he had traveled to meet Edward Brongersma
Edward Brongersma
Edward Brongersma was a Dutch politician and doctor of law. For a number of years he was a member of the Dutch Senate for the Labour Party, and chairman of the Senate Judiciary Committee...
, a Dutch jurist and open advocate of pederastic
Pederasty
Pederasty or paederasty is an intimate relationship between an adult and an adolescent boy outside his immediate family. The word pederasty derives from Greek "love of boys", a compound derived from "child, boy" and "lover".Historically, pederasty has existed as a variety of customs and...
boylove
Boylove
*For "boylove" as used by pedophilia advocates, see age of consent reform. *For information on man/boy relationships, see Pederasty*For fictional romantic and erotic relationships between males in Japanese media, see Boys Love....
. Upon return, Canada Customs found a collection of computer discs containing a text entitled "Boyabuse". A later search of his Vancouver apartment revealed a collection of photographs of nude teenage boys, some of them engaged in sexual acts with one another. Sharpe was arrested and charged with illegal possession under s. 163.1(4) of the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
, and for possession for the purposes of distribution or sale under s. 163.1(3) of the Code.
Acting in his own defense, Sharpe challenged the criminal provisions as violation of freedom of expression under section 2(b) of the Charter. Sharpe argued before a court that laws regarding the possession of child pornography violated his freedom of thought and expression. He presented a fairly controversial argument that since he was interested in teenage boys, he should be entitled to pornographic material relating to his sexual interests. Nonetheless, the law he was charged under was eventually upheld with some exceptions regarding written pornography
Pornography
Pornography or porn is the explicit portrayal of sexual subject matter for the purposes of sexual arousal and erotic satisfaction.Pornography may use any of a variety of media, ranging from books, magazines, postcards, photos, sculpture, drawing, painting, animation, sound recording, film, video,...
.
During his trial, the prosecutor argued for the harmfulness of child pornography possession and why it should remain illegal. Sharpe attempted to refute the prosecution's claims that child porn and child sexual abuse are a related paradigm by claiming that the legal attitudes towards pornographic representations of children 'creates a victim' instead of starting with one. The line between production, distribution, and possession was also espoused by Sharpe. He further argued that in many instances possession of child pornography could act as a catharsis
Catharsis
Catharsis or katharsis is a Greek word meaning "cleansing" or "purging". It is derived from the verb καθαίρειν, kathairein, "to purify, purge," and it is related to the adjective καθαρός, katharos, "pure or clean."-Dramatic uses:...
in preventing child sexual abuse. In regard to provisions on written pornography, Sharpe argued that the law in question targeted the political advocacy of pederasty
Pederasty
Pederasty or paederasty is an intimate relationship between an adult and an adolescent boy outside his immediate family. The word pederasty derives from Greek "love of boys", a compound derived from "child, boy" and "lover".Historically, pederasty has existed as a variety of customs and...
and served little purpose in protecting children from sexual abuse
Sexual abuse
Sexual abuse, also referred to as molestation, is the forcing of undesired sexual behavior by one person upon another. When that force is immediate, of short duration, or infrequent, it is called sexual assault. The offender is referred to as a sexual abuser or molester...
. The charges in respect to Sharpe's writings were eventually dismissed when he argued artistic merit with the assistance of an English professor who compared his written works to 'transgressive expression' parallel to Marquis de Sade
Marquis de Sade
Donatien Alphonse François, Marquis de Sade was a French aristocrat, revolutionary politician, philosopher, and writer famous for his libertine sexuality and lifestyle...
's 120 Days of Sodom
120 Days of Sodom
The 120 Days of Sodom, or the School of Libertinism is a novel by the French writer and nobleman Donatien Alphonse François, Marquis de Sade, written in 1785...
.
Opinion of the Court
Chief JusticeChief Justice of Canada
The Chief Justice of Canada, like the eight puisne Justices of the Supreme Court of Canada, is appointed by the Governor-in-Council . All nine are chosen from either sitting judges or barristers who have at least ten years' standing at the bar of a province or territory...
Beverley McLachlin
Beverley McLachlin
Beverley McLachlin, PC is the Chief Justice of Canada, the first woman to hold this position. She also serves as a Deputy of the Governor General of Canada.-Early life:...
, writing for the majority, held that the provision in the Code violated the freedom of expression but was justified under section one as the government objective of protecting children from exploitation was proportional to the violation.
The Court, however, finds that the provisions were too broad for including two types of material that should not constitute child pornography as they do not pose a direct potential harm to children. First, where the written or visual representations were created and possessed by the accused for exclusive personal use, and second, where "visual recordings created by or depicting the accused that do not depict unlawful sexual activity and are held by the accused exclusively for private use."
Question of law
Judge McLachlin, under section (7), was given the ability to interpret the law. Her interpretation in regards to making works of the imagination (imaginary human beings) illegal was used as a legal precedentPrecedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
referenced in later cases for prosecuting people who imported Japanese artwork which was and still is legal in both Japan and the United States where the convicted men imported it from. This precedent referred to Sharpe's stories, and was used as a precedent for convictions of people who possessed images and illustrated stories (manga
Manga
Manga is the Japanese word for "comics" and consists of comics and print cartoons . In the West, the term "manga" has been appropriated to refer specifically to comics created in Japan, or by Japanese authors, in the Japanese language and conforming to the style developed in Japan in the late 19th...
, Japanese comics).