INDEPTH: CHILD PORN
R. v. Sharpe: Excerpts from the Supreme Court ruling on child pornography
CBC News Online | March 8, 2004
On Jan. 26, 2001, the Supreme Court of Canada released its decision in the case of R. v. Sharpe. The ruling upheld the parts of the country's pornography law that prohibits manufacturing and distribution. However, the court said that people can't be prosecuted for creating photographic or written porn as long as it's designed for their own use and as long as real photos don't show unlawful acts.
Here are some excerpts from the Supreme Court's ruling. The full text of the ruling is available here.
R. v. Sharpe
The accused was charged with two counts of possession of child pornography
under s. 163.1(4) of the Criminal Code and two counts of possession of child
pornography for the purposes of distribution or sale under s. 163.1(3).
"Child pornography," as defined in s. 163.1(1) of the Code, includes visual
representations that show a person who is or is depicted as under the age of 18
years and is engaged in or is depicted as engaged in explicit sexual activity
and visual representations the dominant characteristic of which is the
depiction, for a sexual purpose, of a sexual organ or the anal region of a
person under the age of 18 years. "Child pornography" also includes visual
representations and written material that advocates or counsels sexual activity
with a person under the age of 18 years that would be an offence under the Code.
Prior to his trial, the accused brought a preliminary motion challenging the
constitutionality of s. 163.1(4) of the Code, alleging a violation of his
constitutional guarantee of freedom of expression. The Crown conceded that s.
163.1(4) infringed s. 2(b) of the Canadian Charter of Rights and Freedoms but
argued that the infringement was justifiable under s. 1 of the Charter. Both
the trial judge and the majority of the British Columbia Court of Appeal ruled
that the prohibition of the simple possession of child pornography as defined
under s. 163.1 of the Code was not justifiable in a free and democratic society.
Held: The appeal should be allowed and the charges remitted for trial.
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