1. BODIES

C. Pornography

Leading Cases

R. v. Sharpe [1999], Supreme Court of British Columbia

http://www.canlii.org/bc/cas/bcsc/1999/1999bcsc10070.html

This case explores the different Criminal Code provisions related to child pornography and determines whether they violate freedom of expression and if they do whether the violation is justified.

R. v. Sharpe [2001] 1 S.C.R., Supreme Court of Canada

http://www.canlii.org/ca/cas/scc/2001/2001scc2.html

The criminalization of child pornography did violate freedom of expression but was justified because the criminalization protected children. However, pornographic material that is created by the mind of an individual and is kept private does not pose a risk to children and the violation of freedom of expression cannot be justified.

R. v. Sharpe [2002], Supreme Court of British Columbia

http://www.canlii.org/bc/cas/bcsc/2002/2002bcsc213.html

Sharpe was charged with possession of child pornography including stories that he had written. The Court held that the written material did not actively advocate or counsel the reader to engage in the acts described nor did they send a message that sex with children could and should be pursued.  Even if they did, they had sufficient artistic merit so as to fall within the exception under section 163.1(6) of the Criminal Code.

Little Sisters Book and Art Emporium v. Canada (Minister of Justice) [1992], Supreme Court of British Columbia

http://www.canlii.org/bc/cas/bcsc/1992/1992bcsc11304.html

Attempt by Canada to have the case dismissed.

Little Sisters Book and Art Emporium v. Canada (Minister of Justice) [1998], Court of Appeal for British Columbia

http://www.canlii.org/bc/cas/bcca/1998/1998bcca320.html

Little Sisters challenged the constitutionality of customs legislation which empowered customs officials to decide whether material being imported into Canada was obscene or not. Little Sisters objections were largely based on the delegation of decision making power to customs officials and the fact that homosexual material was often declared obscene. The Court recognized that the legislation violated freedom of speech but was justified.

Little Sisters Book and Art Emporium v. Canada (Minister of Justice) [2000], 2 S.C.R.

http://www.canlii.org/ca/cas/scc/2000/2000scc69.html

The Court found that the legislation was not intended to be applied differently to material based on its sexual orientation. A failure at the administrative level did not make the legislation unconstitutional. Any problems with implementation could be addressed at the administrative level.

R. v. Butler [1992] 1 S.C.R.

http://www.canlii.org/ca/cas/scc/1992/1992scc15.html

Section 163 of the Criminal Code renders obscene material illegal. The purpose of the legislation to is to prevent harm to society. This is a pressing and substantial concern and justifies an infringement on freedom of expression. This provision only prohibits the distribution and exhibition of sexually explicit material that is violent, and degrading or dehumanizing. 

American Booksellers Association, Inc., et al., Plaintiffs-Appellees, v. Willliam H. Hudnut, III, Mayor, City of Indianapolis, et al., Defendants-Appellants

http://www.iso.gmu.edu/~weitzman/american.htm