''R v Sharpe'', 2001 SCC 2 is a constitutional rights decision of the
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
. The court balanced the societal interest to regulate
child pornography
Child pornography (also called CP, child sexual abuse material, CSAM, child porn, or kiddie porn) is pornography that unlawfully exploits children for sexual stimulation. It may be produced with the direct involvement or sexual assault of a chi ...
against the right to
freedom of expression
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recogni ...
possessed by the defendants under
section 2 of the ''
Canadian Charter of Rights and Freedoms
The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
;'' holding, that while general prohibition of child pornography was constitutional, there were some limits imposed by the ''Charter''. The decision overturned a ruling by the
British Columbia Court of Appeal
The British Columbia Court of Appeal (BCCA) is the highest appellate court in the province of British Columbia, Canada. It was established in 1910 following the 1907 Court of Appeal Act.
The BCCA hears appeals from the Supreme Court of Britis ...
.
Background
After police seized 517 photographs mostly of young boys,
as well as sexually explicit stories;
John Robin 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 se ...
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
A criminal code (or penal code) is a document that compiles all, or a significant amount of a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that migh ...
placed an unreasonable limitation on his freedom of expression, and in a ruling the British Columbia Court of Appeal concurred;
Justice Duncan Shaw ruled that the law was a "profound invasion" of the freedom of expression and
right to privacy
The right to privacy is an element of various legal traditions that intends to restrain governmental and private actions that threaten the privacy of individuals. Over 150 national constitutions mention the right to privacy. On 10 December 1948 ...
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
A member of parliament (MP) is the representative in parliament of the people who live in their electoral district. In many countries with bicameral parliaments, this term refers only to members of the lower house since upper house members of ...
petitioning the
Prime Minister
A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister is not ...
to intervene.
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).
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".
References
External links
*
{{DEFAULTSORT:Sharpe
Canadian Charter of Rights and Freedoms case law
Canadian freedom of expression case law
Child pornography law
Sex laws
Supreme Court of Canada cases
2001 in Canadian case law
Canadian criminal case law
Section Two Charter case law