Are Canada’s Child Pornography Laws
Unconstitutional?
In early 1999, British Columbia Supreme Court ruled unconstitutional a provision of the Criminal Code, which makes procession of
child pornography a criminal offence.
R v. Sharpe
·
John
Robin Sharpe charged with 4 Counts and tries to overturn the law by stating
that the law is unconstitutional.
·
Justice
Duncan Shaw stated that all parties to the legal case agreed that the situation
violated the section 2)b) of the Canadian Charter of Rights and Freedoms,
which protected his freedom of expression
2) b) Freedom
of thought, belief, opinion of expression,
including
freedom of press and other media of
communication;
·
In
the Charter section 1, which allows limits on rights and freedoms if it can be
considered reasonable in a free democratic society.
1)
The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms
set out in it
subject only to such reasonable
limits prescribed
by law as can be demonstrably
justified in a free
democratic society.
·
Justice
Shaw believed that provision of child pornography couldn’t be considered a
reasonable limit.
·
(In
other words you can’t put a limit on child pornography)
Courts
·
Government
of Canada appealed the decision to the British Columbia Court of Appeal, but
lost on split decision.
·
Further
appeal went to Supreme Court of Canada (highest court in the land) found that
prohibiting the procession of pornography could be considered a reasonable
limit.
·
Mr.
Sharpe (victim) lost the battle on the issue of constitutionality of the
Criminal Code provision, and would face charges of possession of child
pornography.
·
However
the Supreme Court then specified a few exceptions of the child pornography law,
but none of them applied to Mr. Sharpe.
Reasonable Limit
·
Based
on the case R. v. Sharpe the definition of reasonable limit and its
purpose to the Criminal Code was re-evaluated.
·
Supreme
Court was determining the boundaries on a persons right or freedom protected in
the Charter of Rights and Freedoms.
Steps Taken:
1) Finding a considerable goal which
legislation must attempt to find an important societal goal.
2) Proportionality, where legislation
is close to figuring the societal goal like how the federal government proved
that the prohibitions on child pornography would lead problems against child
pornography and other acts of sexually related offences.
·
Also
it requires the legislation to limit the restricted freedom as a little as
possible.
3) Government lawyers prove that
benefits of restricting will end up
Outweighing the costs of doing it.
The Supreme Court decided that
prohibition on possession of child pornography (with some exceptions) could be
seen as a reasonable limit on Mr. Sharpe’s freedom of expression.
Controversy and Final Decision
·
Due
to the decisions in R. v. Sharpe there were death threats to Justice Shaw and
Mr. Sharpe.
·
House
of Commons, a member of Parliament suggested of using the notwithstanding
clause in the Charter of Rights and Freedoms after Shaw’s decision.
·
This
allows a final decision to overrule the Charter court decisions (not a method
often used)
·
The
outcome of the re-enactment of laws declared it unconstitutional by the judges.
Disappointing Faces
·
Proposal
of using the notwithstanding clause was not accepted and the Supreme Court’s
decision relieved many concerns but worried the civil liberties association
·
Civil
liberties association felt that the decision was unclear when applying it to
many different situations on child pornography
·
“Legal
commentators felt the Supreme Court bowed to public pressure.”
·
Courts
felt they “made a political decision, not a legal one.”
Glossary Terms:
Provision: A preparatory action or measure
Unconstitutional: Not in accord with the principle set forth in the constitution of a nation
or a state.
Prohibition: A law, order, or decree that forbids something.
Proportionality: Forming a relationship with other parts or quantities; in proportion
Assuaged: Soothe or appease
Deviancy: One that differs from a norm, especially a person whose behaviour and
attitudes differ from accepted social standards.
Cognitive: Knowing, perceiving, or conceiving as distinct from emotion and volition.
Dissemination: Scatter about; spread (esp. ideas) widely.
Advocates: To speak, plead, or argue in favour of.
Deleterious: Having a harmful effect; injurious
Salutary: Producing good effect.
Impugned: To attack as false or questionable; challenge in argument
Curtailment: To cut short or reduce
Augmentation: make greater, increase
Autonomy: Self-government or the right of self-government; self-determination
Abrogating: To abolish, do away with, or annul, especially by authority
Dissemination: To scatter widely
Discussion Questions:
Stephanie Chong