Sharpe not guilty of possessing written child pornography
John Robin Sharpe is not guilty of possessing or distributing written child pornography, British Columbia Supreme Court Judge Duncan Shaw ruled on Tuesday.
INDEPTH: The Supreme Court and child porn
But he was found guilty of two counts of possessing pornographic pictures of children, a finding that was expected because he had admitted the facts in one of the two situations.
The judge said Sharpe's defence on the written material succeeded on two grounds.
First, he said written material must advocate committing a sexual crime with a child to be illegal.
"These writings simply describe morally repugnant acts," the judge said, but the stories "do not actively advocate or counsel the reader to engage in the acts described." Therefore, they are not illegal.
Shaw also said the stories had artistic merit, based on testimony from two out of three experts. Artistic merit is a defence, "irrespective of whether the work is considered pornographic," he wrote.
Sharpe will be sentenced for possession of the pictures on May 2. Judge Shaw has asked for a report on electronic monitoring.
Sharpe could be jailed, placed under house arest with an electronic monitor, or receive a lesser sentence.
The ruling was welcomed as increasing literary freedom by Sharpe and his lawyer, but denounced as harmful to children by Rosalind Prober, co-founder of Beyond Borders, an organization dedicated to protecting children.
"It still is a crime to possess child pornography," said prosecutor Terry Schultes.
The B.C. government could appeal the finding, further extending a case which began in 1995 when Sharpe was caught at the U.S.-Canada border carrying some of the pictures and stories that were the subject of Shaw's ruling.
Vancouver police later searched his house and found additional stories and pictures. Sharpe's case came to national attention after he won a trial and then an appeal in B.C. based on his constitutional challenge of the child pornography law.
Amid a wave of anger, the federal and six provincial attorneys-general appealed the B.C. ruling to the Supreme Court of Canada. In January 2001, the top court upheld the ban on possessing child pornography, with two exceptions.
One said that people can't be prosecuted for written or visual materials created for their their own use and the other allows visual materials as long as photos don't show unlawful acts and are for the owner's own use.
The Supreme Court sent Sharpe's case back for retrial in B.C., which took place in January.