R v Sharpe in Relation to the Constitutional Right of Freedom

Development of Law

In the said case, John Robin Sharpe was charged for an offence under section 163.1(4) of the Canadian Criminal Code and section 163.1(3) of the Canadian Criminal Code. Section 163.1 Canadian Criminal Code discuss prohibition imposed on child pornography in Canada (Tóth, 2013). The said section states that every individual in Canada who possesses child pornography in any form whatsoever will be guilty of either committing a serious offence which is punishable with imprisonment of not more than 10 years and a minimum prison term of one year or committing an offence which is punishable on summary conviction including a maximum punishment of imprisonment of 2 years and a minimum prison term of six months (Seto, Cantor & Blanchard, 2016). Additionally, the section 163.1(3) of the Canadian Criminal Code makes it illegal to possess child pornography in Canada with an intention to sell, distribute, export, import or advertise and is punishable with a maximum prison term of 14 years and a minimum prison term of one year in Canada (Slane, 2010). In the present case, after the judgment of the Supreme Court of Canada, the section 163.1(4) of the Canadian Criminal Code were considered unconstitutional in nature as they violated the constitutional right of freedom of speech guaranteed under 2(b) of the Canadian Charter of Rights and Freedom. After the said case, the judges of the Supreme Court in Canada decided to add to exceptions to the said section of the Criminal Code in Canada to render it constitutional (Gillespie, 2010). The said exceptions were self created material which is expressive in nature which meant that any material written or visual in form created or used by an accused under this section exclusively for his personal use is not in violation of the Criminal Code in Canada and private recordings of sexual acts which are legal in nature which means any visual recording which is created or used by an accused under the said section is not in violation of the Criminal Code in Canada providing the said visual recording is not depicting any unlawful sexual acts and is possessed by the accused for his personal exclusive use (Boyce, Cotter & Perreault, 2014). Moreover, the Canadian Government introduced many amendments in the Criminal Code in form of Bill C-20, Bill C- 12 and Bill C -2. In these Bills the scope of the definition of child pornography was widen and the “artistic defense” used in this case was changed by the defense of “public good”. Therefore, if the said case was decided today, John Robin Sharpe would be guilty of the offence of possessing child pornographic material in order to sell and distribute the same as a result of written material being at issue (Ibrahim, 2010).  

The judgment in the R v Sharpe case was passed by the Supreme Court of Canada where it overruled the judgment given by the lower court of British Columbia Supreme Court when the same was appealed. The decision of the British Columbia Supreme Court which is lower territorial court stated that sub-section (4) of section 163.1.1 of the Criminal Code in Canada is declared void as it infringes the right of freedom of speech guaranteed to citizens of Canada under 2(b) of the Canadian Charter, however, the Court stated that the same was not justified under section 1 of the government’s objective to ensure that children in Canada are free from sexual abuse. The Supreme Court reserved the said judgment by agreeing that violation of freedom of speech does exist in the said case, however, it provided two exceptions where possessing child pornography was considered legitimate. Thus, the development of the case is summarized in a manner which includes its inception in the year 1994 in the Supreme Court of British Columbia which passed the above mentioned judgment on January 13, 1999. As John Robin Sharpe was not satisfied with the decision of the said Court, he filed for an appeal in the Supreme Court of Canada.

Court’s Ruling

In the said case, the Supreme Court of Canada upheld the decisions of the trial Court and agreed that section 163.1(4) of the Canadian Criminal Code and section (Nicol & Valiquet, 2014).  163.1(3) of the Canadian Criminal Code were in violation with the right to freedom of speech however, the Court mentioned that the sections in the Canadian Criminal Code were too broad for constituting two different type of material which include child pornography as they are not directly harming or abusing children in any manner. Thus, two exceptions as mentioned above were introduced which made possession of child pornography legal in Canada. The Court stated that material which constitute of child pornography can be defended on the grounds of “artistic merit”. The Court in upholding the said defense defined the terms “artistic merit’ and “art” and stated that the said defense was at judges discretion based on facts and consideration of factors like form of work, intention of creator, creators connection with art work, styles and traditions (Akdeniz, 2010). To reach the said decision, the Court relied on the judgment of a case law passed by the Supreme Court of Canada in R v Butler in which the Judge considered whether sexually obscene material was protected by freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms. In the said case, Mr. Butler owned a shop in which he sold pornographic videos. He was arrested for the same and the obscene material in his shop was confiscated. The police charged him guilty of violating section 163 of the Criminal Code in Canada which makes it illegal to possess and sell pornographic material. Mr. Butler, however, after a while, re-opened his shop and was again arrested. This time, Mr. Butler stated that section 163 of the Criminal Code in Canada is in violation of section 2 (d) of the Canadian Charter on Rights and freedoms. The Supreme Court in the said case decided that the said section has indeed infringed Mr. Butler right of freedom of expression. However, section 168 of the Code was upheld as reasonable limit is stated in section 1 of the Charter of Rights and Freedoms in Canada which clearly specifies that freedom of expression is sanctioned to the citizens of Canada subject to practical and reasonable limitations which are prescribed under law and hold valid justification in a free democratic state. Similarly, a reference of R v Zundel was also mentioned in the judgment of the said case. In R v Zundel, Zundel was alleged to have committed offence under section 181 of the Criminal Code of spreading rumors by distributing certain pamphlets, however, Zundel stated that the said allegations are in violation of his right to freedom of expression (Boyce, Cotter & Perreault, 2014). The Court had decided that section 181 of the Criminal Code was breached by Zundel, however, the said section did violate right to freedom of expression as freedom of expression includes all expressions which are no-violent in nature and expression of minority even if majority did not find the expression to be correct. Relying of the two judgments of 1992, the Supreme Court of Canada in the said case stated that John Robin Sharpe’s right to freedom of expression was infringed. The said case was considered very controversial as implications were considered of striking out restrictions of possession child pornographic being against the interest of children and public interest at large, however, the constituency of the judgment was in question which resulted in introduction of many amendment Bills to widen the scope of definition of child pornography and elimination of defense of artistic work with introduction of a defense claiming public good supporting child protection. In the said case, John Robin Sharpe failed to prove that the child pornographic he possessed as for his personal use and thus, he was charged for the offence of possessing child pornographic however, when it came to written material in pornographic, the Court held that it did not directly depict any commission of sexual offence against children thus he was acquitted under section 163(3) of the Code.

Conclusion

A conflict between child rights and constitutional right made the said case very controversial. However, the judgment in the said case made it clear that individuals in Canada are guaranteed the right to freedom of expression under 2(d) of the Charter of Rights and Freedom however, the said right is limited to reasonable exceptions as prescribed by law and any individual is not allowed o take advantage of the same. The said case resulted in introduction of Bill C-15A which suggested amendments in Criminal Code to protect children from sexual abuse on internet (Greco, 2016). Thus, the said judgment resulted into many legislative and statutory changes to make the law competent to right of children to be free from sexual abuse and to promote public interest at large (Livingstone & O’Neill, 2010). Therefore, the said case is a landmark judgment concerning constitutional right and reforms on child pornography in Canada.

Reference List

Akdeniz, Y. (2010). To block or not to block: European approaches to content regulation, and implications for freedom of expression. Computer Law & Security Review, 26(3), 260-272.
Boyce, J., Cotter, A., & Perreault, S. (2014). Police-reported crime statistics in Canada, 2013. Juristat: Canadian Centre for Justice Statistics, 1.
Boyce, J., Cotter, A., & Perreault, S. (2014). Police-reported crime statistics in Canada, 2013. Juristat: Canadian Centre for Justice Statistics, 1.
Gillespie, A. A. (2010). Defining child pornography: challenges for the law.Child and Family Law Quarterly, 22(2), 200-222.
Greco, C. A. (2016). Falling Back on the Concept of (Moral) Panic: Questioning Significance, Practicality, and Costs (Doctoral dissertation, Université d'Ottawa/University of Ottawa).
Ibrahim, A. (2010). Child pornography and IT. Technology for Facilitating Humanity and Combating Social Deviations: Interdisciplinary Perspectives: Interdisciplinary Perspectives, 20.
Livingstone, S., & O’Neill, B. (2010). Promoting children’s interests on the Internet: regulation and the emerging evidence base of risk and harm.Internet, Politics, Policy, 16-17.
Nicol, J., & Valiquet, D. (2014). Bill C-13: An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act. Ottawa: Library of Parliament.
Pledger-Fonte, D. (2012). United Nations Convention on the Rights of the Child. In Encyclopedia of Immigrant Health (pp. 1456-1458). Springer New York.
R v Sharpe, 1 S.C.R. 45, SCC 2 (Supreme Court of Canada 2001).
Rights, E. (1985). Canadian charter of rights and freedoms. Toronto: Carswell.
Seto, M. C., Cantor, J. M., & Blanchard, R. (2016). Child pornography offenses are a valid diagnostic indicator of pedophilia. Journal of abnormal psychology, 115(3), 610.
Slane, A. (2010). From scanning to sexting: The scope of protection of dignity-based privacy in Canadian child pornography law. Osgoode Hall Law Journal, 48, 543.
Tóth, A. G. (2013). Freedom of speech and privacy on the Canadian Internet 1993-1998.