R. v. Sharpe: A Comment Cary D. Clark 3rd Year student Faculty of Law University of Manitoba Before entering Law school, I would have laughed at the ridiculous notion that our constitution protects the right to possess child pornography. Now, two-thirds of the way through my final year, it looks like the joke’s on me. When the B.C. Court of Appeal ruled last June that the possession section of the child pornography law violates expressive rights under the Charter, constitutional jurisprudence in Canada sunk lower than even the most cynical court-watchers ever dreamed it could go.    When the Supreme Court of Canada stated back in 1989 that all expression is worthy of constitutional protection “however unpopular, distasteful or contrary to the mainstream,” they essentially closed the door on any debate over the merits of the particular expression at issue. They presumably felt it was safe to do so because of the ‘saving’ section in the Charter that allows legislators to encroach on constitutional rights providing such limits are reasonable and can be “demonstrably justified in a free and democratic society.” In applying this test to the child pornography law, however, the courts in B.C. have given Parliament a failing grade. The law is overly broad, they said, because the definition of child pornography captures material where

no for distribution. They also point out that mere possession of expressive material has never been criminalized in any other context. Maybe so, but to legalize possession of child pornography is to perpetuate a market for it. Furthermore, if it is okay to possess such material, then it could be shown to others with impunity, for this would not constitute distribution. It could also be used to fuel paedophilic desires. Finally, the law contains a defence for artistic merit or educational purpose, and proof of intent is required to secure a conviction, so the concern that innocent people will be prosecuted is largely unfounded. It is incumbent on Canada’s high court to entertain these arguments and expose the suspect reasoning behind the decisions to date. Possession of narcotics is a crime – surely child pornography should be on no better footing.    While it will be some time before we have a decision, we can only hope the Supreme Court will put the rights of children to be free from sexual exploitation and abuse above the privacy rights of unsavoury individuals like John Robin Sharpe. The sceptical among us can take solace in one thing, however. Even if the court strikes down the law, this is one case where the political will already exists to enact a better one. What's Inside... 2. Prairieaction Update 3. RESOLVE Volume Series 3. RESOLVE MB Update 4. RESOLVE SK Update 4. International Cooperation 5. RESOLVE AB Update   5. What Works? 6. What Works? 7. Announcements 7. Conferences 8. Call for Themes 8. Contact Info

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