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Posted on August 30th, 2012, by

The development of the pornography legislation in Canada was traditionally oriented on the limitation of the spread of pornography in the country to the total ban of storage and distribution of pornography. At the same time, the legal norms concerning the regulation and ban of pornography in Canada raises a number of controversial issues, among which it is possible to single out the problem of the limitation of the right of Canadians to freedom of expression. The existing controversies open the way for the dubious interpretation of existing laws and legal norms concerning pornography. In this respect, it is possible to refer to the case of R. v. Sharpe, 2001, which revealed drawbacks of existing legal norms to the extent that the person accused of illegal possession and of the possession for the purpose of distribution or sale, Sharpe, have managed to escape the legal punishment, while the court has dismissed the chargers. In fact, Sharpe has managed to use the weaknesses of the existing legal norms on pornography to avoid the punishment for the aforementioned charges. As a result, the case of R. v. Sharpe created a precedent when a person charged with the possession and the possession for distribution or sale of pornography escaped the punishment on the premise of the artistic merit of the pornographic records he actually possessed. Hence, the need to improve the existing legislation is obvious to avoid similar outcomes of processes involving accused of possession and possession for distribution or sale of pornography in the future.

The background of the decision

The case of R. v. Sharpe involved the issues related to the pornography law, while the court ruling revealed that the existing pornography law leaves the margin for avoiding the legal prosecution for possession of pornography. To put it more precisely, Sharpe was charged with the possession of pornography and possession for the purpose of distribution or sale of pornography after his return from Amsterdam. On his return to Canada, Canada Customs found a collection of computer discs containing a text entitled Boyabuse. The search of his apartment that followed revealed a collection of photographs of nude teenage boys, some of them were engaged in sexual acts with one another. As a result, Sharpe was arrested being charged with the illegal possession of pornography under s 163.1(4) of the Criminal Code of Canada and for possession for the purpose of distribution or sale of pornography under s. 163.1 (3) of the Criminal Code of Canada.

However, Sharpe rejected the charges. In response to the charges, Sharpe appealed to the court challenging the criminal provisions as violation of freedom of expression under section 2(b) of the Charter. To put it more precisely, he argued that the criminal provisions violated his right to freedom of expression of thought and expression.

The case of R v. Sharpe revealed the clash between the pornography law and the right to freedom of expression. Sharpe attempted to prove that the possession of the pornographic materials was not harmful and, what is more, he argued that pornographic materials should be differentiated form the sexual abuse of children. Eventually, he arrived to the paradoxical idea that pornographic materials involving children can act as a catharsis in preventing child sexual abuse. However, these arguments were uncertain and could hardly bring positive outcomes for Sharpe. In order to strengthen his position, Sharpe argued that the pornographic materials had artistic merit. In such a way, he has managed to escape the punishment for possession of pornography and the possession for the purpose of distribution or sale of pornography.

However, the views of specialists on the court ruling vary consistently. The majority, including McLachlin C.J., admitted the priority of the right to freedom of expression compared to the pornography law (R. v. Sharpe, 231). At this point, it is worth mentioning the fact that in the vast majority of the law’s application, the costs it imposes on freedom of expression are outweighed by the risk of harm to children (R. v. Sharpe, 103). In such a context, the court should rather focus on the potential harm the pornographic materials Sharpe possessed imposed on children. Instead, the majority grounded the court ruling on considerations of the right to freedom of expression. Therefore, the inclusion of teenage pornography in s 163(4) is essential and relevant to the concept of the protection of children because it can reduce the potential harm caused by the pornographic materials to children. In such a situation, the position of minority, including Rowles J.A. is more logical and correct. To put it more precisely, Rowles J.A. suggested that s 163(4) could be tailored more effectively to protect teenagers who are in possession of erotic pictures or videotapes of themselves (R. v. Sharpe, 230). Consequently, the court ruling is quite arguable because it favors the right to freedom of expression and underestimates the potential harm of the pornographic materials to children.

In this respect, it is important to understand the fact that Sharpe escaped the punishment because of the imperfectness of the existing legislation concerning pornography. For instance, the existing legal norms admit the possession of written pornography, which actually allowed Sharpe to appeal to the artistic merit of the pornographic materials he possessed. In such a context, the controversy of the existing legal norms is obvious because the existing pornography laws leave the room for avoiding the punishment on the pretext of artistic merit.

At the same time, the existing pornography legislation aims at balancing the regulation and prevention of the possession and distribution of pornographic materials and child pornography and the observation of the right to freedom of expression. To put it in simple words, the existing legislation has a dubious purpose: on the one hand, it is necessary to ban the pornography, namely the child pornography, while, on the other hand, it is necessary to protect the right of citizens to freedom of expression. These controversies came into clashes in the case of R v. Sharpe.

At this point, it is important to understand the fact that the existing legislation does not fully protect children from being involved in the production of pornography. In this regard, Sharpe was right, to a significant extent, because the existing legislation does fail to protect or stop the negative impact of the child pornography. At first glance, the existing legislation prevents possession and distribution of the child pornography but, at the same time, the existing exceptions, which are introduced to observe the right to the freedom of expression, prevent law enforcement agencies from the possibility to eliminate the child pornography totally. As long as there are exceptions, including artistic merit, the child pornography is likely to persist.

Socio-political consequences of the decision

The case of R. v. Sharpe had significant socio-political consequences because this case raised the public debate concerning the pornography legislation and stimulated legislators to start working on the development of amendments which could guarantee the protection of children from being involved in or harmed by the pornography. To put it more precisely, the decision in this case had definitely a negative impact on the public opinion concerning the pornography legislation. In actuality, the public opinion was against the decision in favor of Sharpe (Curry, 82). Obviously, the case of R. v. Sharpe revealed the fact that the existing legislation does not prevent children from the involvement into the production of pornography.

At the same time, it became obvious that the existing legislation should balance the pornography law and the right to freedom of expression.

In this respect, it is necessary to take into consideration the basic goal of the pornography law and the importance of the right to freedom of expression and its exercising. The pornography law aims at the prevention of the spread of pornography and ban of the pornography production. The protection of children from the involvement in the pornography production is one of the primary goals of the existing legislation. However, the case of R. v. Sharpe proves that the existing exceptions make the pornography legislation ineffective.

After the case the public and legislator grew more and more conscious of the fact that stricter pornography legislation has to be implemented. At this point, it is important to lay emphasis on the fact that the existing legislation is not absolutely ineffective but it has to be more accurate in definition of terms, such as child sexual abuse, artistic merit and other relevant terms. Only if the terms are clearly defined, it is possible to avoid misinterpretation or manipulation with such concepts as artistic merit. The latter will minimize the risk that such outcomes as were in the case of R. v. Sharpe will occur in the future. At this point, it is worth mentioning the fact that the Court found the provisions were too broad for including two types of material that should not constitute the child pornography as they do not pose a direct potential harm to children. The first type was materials, where the written or visual representation were created or possessed by the accused for the exclusive personal use. The second type was materials, where visual recordings created by or depicting the accused that do not depict unlawful sexual activity and are held by the accused exclusively for private use (Bailey, 72). In this respect, it is important to lay emphasis on the appeal of the court to the private use. This implies that the possession of the pornographic materials is not banned if it is destined for the private use solely. Hence, it is possible to refer to the purpose of the pornography law again and stress that such view or interpretation of the law fails to meets its goal. Obviously, the possession of the pornographic materials, if it is admitted, encourages the production of the pornographic materials, including the ones involving children. In fact, the only condition on which the pornography production can be eliminated is the equal treatment of all cases of the possession the pornographic materials, regardless of the purpose of the possession.

In this respect, the right to freedom of expression may play a crucial role because it is this right which prevents legislators from total ban of pornography in Canada. The violation of this right raises the risk of disrespect fundamental human rights in Canada. At the same time, it is important to stress that the legislators focused their attention on criminalizing the possession of child pornography that poses a reasoned risk of harm to children (Hogg, 2001).

Conclusion

Thus, taking into account all above mentioned, it is possible to conclude that the case of R. v. Sharpe revealed the controversy of the existing pornography legislation, including its weaknesses. At the same time, the case raised the public opinion to support the introduction of stricter legal norms concerning the possession of child pornography. The major goal of legislators should be the protection of children and the prevention of the production of pornographic materials involving children. On the other hand, legislation needs to take into consideration the right to freedom of expression. Therefore, in such a context, courts should take into consideration the reasoned harm explicit, pornographic materials can cause to children.

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