FACT SHEET

R. v. Sharpe

The Supreme Court of Canada released its decision in R. v. Sharpe on Friday, January 26, 2001. This document outlines the events leading up to the decision.

History of R. v. Sharpe

On January 15, 1999, the B.C. Supreme Court acquitted John Robin Sharpe of two counts of possession of child pornography. Charges against Mr. Sharpe are pending on possession for the purpose of distribution, for which the maximum penalty is 10 years. The Court struck down s. 163.1 (4) (possession of child pornography) of the Criminal Code, declaring it unconstitutional because it violated section 2(b) of the Canadian Charter of Rights and Freedoms. The Court found that the law was an "...intrusion into freedom of expression and the right of privacy is so profound that it is not outweighed by the limited beneficial effects of the prohibition." Since the provision failed this weighing of competing interests test, the Court concluded that it was not saved by s. 1 of the Charter. Section 1 allows for the rights guaranteed in the Charter to be subject to reasonable limits.

The Attorney General of British Columbia appealed the decision, but, on June 30, 1999, in a ruling by a majority of 2 to 1, the Court of Appeal of British Columbia upheld the lower court decision in R. v. Sharpe. The majority decision stated that the offence of possession of child pornography was defined too broadly in s. 163.1. Specifically, the Court was concerned that the definition captured, for example, material that was created without abusing children, not intended for dissemination or to be published or sold (such as diaries). The court also speculated that, among other things, the definition could cover a young couple where one or both partners are younger than 18 recording their own consensual lawful sexual activities. The judges decided that s. 163.1 (4) impaired the freedom of expression beyond what was necessary to achieve the stated goal of protecting children.

The Court of Appeal of British Columbia&'s decision was then appealed to the Supreme Court of Canada. The Attorney General of Canada, as well as the Attorneys General of Alberta, New Brunswick, Nova Scotia, Ontario, Quebec and Manitoba, intervened in the case. Many non-governmental organizations were also given intervenor status, including: the Canadian Police Association; Canadians Against Violence (CAVEAT); the Canadian Association of Chiefs of Police; the Criminal Lawyers Association (Ontario); the British Columbia Civil Liberties Association; the Canadian Civil Liberties Association; Beyond Borders; End Child Prostitution in Asian Tourism (ECPAT); Canadians Against Sexual Abuse (CASE); the International Bureau for Children&'s Rights; the Evangelical Fellowship of Canada; and Focus on the Family. The hearing took place on January 18 and 19, 2000.

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