Judicial Activism in R. v. Sharpe: An Administration or Perversion of Justice
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Jf u stie i
DEIRDRE
SHEEHAN IS A
SECOND YEAR LAW
STUDENT AT THE
UNIVERSITY OF
VICTORIA. SHE IS
A FORMER ENGLISH
TEACHER, AND SHE
COMPLETED HER
UNDERGRADUATE
DEGREE IN
EDUCATION AT THE
UNIVERSITY OF
ALBERTA.
I Porn ruling draws
public wrath Toronto
Star (25 January 1999)
A16; Ian Bailey, Judge
in BC child-porn case
receives death threat
over ruling Globe &
Mai/Met Edition (23
January 1999) A10;
Carla Yu, See no evil:
moral taboos tumble as
a judge uses the charter
to legalize child porn
Bn isb Columbia Report
v.10:7 (8 February 1999)
at 38-42; Mark Hume,
Child por will flourish
without law, police
warn National Post (27
April 1999) Al, AS.
2 R. v. Sharpe (1999), 169
Dominion Law Reports
(4th) 536 (British
Columbia Supreme
Court).
3 Revised Statutes of
Canada 1985, chapter C-
46; hereinafter cited as
the Criminal Code.
4 Part I of the
Cons itution Act, 1982,
being Schedule B to by
Canada Act 1982 (U.K.),
1982, c1 1; hereinafter
the Charter.
5 R v. Sharpe (1999), 175
Dominion Law Reports
(4th) 1 (British
Columbia Court of
Appeal); hereinafter
cited to Dominion Law
Reports as Sharpe.
I. Introduction
F ew Canadian judicial decisions have generated more outragei than the 1999 British
Columbia Supreme Court2 ruling striking down the Criminal Code of Canada3 prohibi-
tion of child pornography possession. The British Columbia Court of Appeal affirmed the
finding that the prohibition was an unjustifiable restriction on freedom of expression, as
guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms,4 in July of 1999.'
These judgments were labelled completely unacceptable and inappropriate6 and prompted
the dire warning that such liberal interpretation of the Charter's guarantees would give license
to extreme social deviance and lead incrementally to the legalization of intergenerational
sex.7 This outrage quickly became a criticism of the judiciary and a justice system wholly
oblivious to the public mood.' The Official Opposition in Parliament was also quick to jump
on the controversial ruling, issuing such statements as the following:
the real legal nuclear bomb... is the abuse of judicial authority exercised by judges such
as the one in this case, where they use their own narrow parochial, social, political values
to impose them on society, contra the virtual unanimity of Canadian democracy.'
Further, the Opposition also suggested that as a response to such judicial politics, the Federal
Government use the Charter's section 33 notwithstanding clause to uphold the prohibition
on possession of child pornography.0
An examination of the reasoning of the majority at the Court of Appeal, however,
illustrates that outrage surrounding the ruling is more ignorance conjured up... [by] the
spectre of a judge giving judicial approval to sexual exploitation of prepubescent children...
contrary to the will of Parliament' than legitimate concern over judicial activism. Indeed,
rather than an example of the courts usurping the power of the legislature, the Sbarpe decision
is a demonstration of the judiciary fulfilling its proper institutional role by ensuring that
Parliament acts within the legal confines of the Constitution.
II. Background
At issue in the Sbarpe case is the constitutional validity of section 163.1(4) of the
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Judicial Activism in R. v. Sharpe: An Administration or Perversion of Justice
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