childpornoappeal1

R. v. Sharpe
Her Majesty The Queen Appellant
v.
John Robin Sharpe Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General of Nova Scotia,
the Attorney General for New Brunswick,
the Attorney General of Manitoba,
the Attorney General for Alberta, the
Canadian Police Association (CPA),
the Canadian Association of Chiefs of
Police (CACP), Canadians Against
Violence (CAVEAT), the Criminal
Lawyers' Association, the Evangelical
Fellowship of Canada, Focus on the
Family (Canada) Association, the British
Columbia Civil Liberties Association, the
Canadian Civil Liberties Association,
Beyond Borders, Canadians Addressing
Sexual Exploitation (CASE), End Child
Prostitution, Child Pornography and
Trafficking in Children for Sexual Purposes (ECPAT)
and the International Bureau for Children's Rights Interveners

Indexed as: R. v. Sharpe
Neutral citation: 2001 SCC 2. File No.: 27376.
2000: January 18, 19; 2001: January 26.
Present: McLachlin C.J. and L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law -- Charter of Rights -- Freedom of expression -- Child pornography -- Whether possession of expressive material protected by right to freedom of expression -- Canadian Charter of Rights and Freedoms, s. 2(b).
Constitutional law -- Charter of Rights -- Right to liberty -- Whether Criminal Code prohibition of possession of child pornography infringing right to liberty -- Canadian Charter of Rights and Freedoms, s. 7 -- Criminal Code, R.S.C. 1985, c. C-46, s. 163.1(4).
Constitutional law -- Charter of Rights -- Freedom of expression -- Child pornography -- Crown conceding that Criminal Code prohibition of possession of child pornography infringing freedom of expression -- Whether infringement justifiable -- Canadian Charter of Rights and Freedoms, s. 1 -- Criminal Code, R.S.C. 1985, c. C-46, s. 163.1(4).
Criminal law -- Child pornography -- Criminal Code prohibiting possession of child pornography -- Scope of definition of "child pornography" -- Defences available -- Criminal Code, R.S.C. 1985, c. C-46, s. 163.1.
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.\
Con't.