Tale of two courtrooms.

• Author: Mitchell, Teresa

Remember when you were in school and an exam essay question would begin with the words "Compare and contrast..."? Canadian courtrooms can be fertile ground for finding situations that allow us to compare and contrast the different results that can emerge from similar facts. Two judges recently reached totally different conclusions about a very controversial topic, while Courts of Appeal weighed in and waited and the shadow of the Supreme Court of Canada loomed over it all.

The case of R. v. Sharpe caused a sensation in Canada in January of this year. Mr. Justice Duncan Shaw struck down section 163.1 (4) of the Criminal Code dealing with the possession of child pornography because he ruled that it contravened the Charter of Rights and Freedoms, which guarantees the right to freedom of expression to all Canadians. This judge focused on the Charter rights of the accused. About Mr. Sharpe's right to possess child pornography for his personal use, Justice Shaw said "The invasion of freedom of expression and personal privacy is profound. The intrusion into freedom of expression and the right to privacy is so profound that it is not outweighed by the limited beneficial effects of the prohibition." He dismissed the charges against Mr. Sharpe for possession of child pornography but upheld the sections of the Criminal Code dealing with production and distribution of child pornography.

The decision resulted in a firestorm of comment and criticism in Canada. Justice Shaw had pointed out in his ruling that other sections of the Criminal Code protect children from abuse and exploitation as a result of pornography, but many Canadians felt that children's rights were abandoned in favour of the defendant's rights to freedom of expression. The furor was nation-wide despite the fact that Mr. Justice Shaw's decision has effect only in British Columbia. It is not binding on courts in other Canadian provinces, although other courts may take it into consideration. The Court of Appeal of British Columbia may reverse it. Indeed, the case has been fast-tracked through the appeals process by both the Office of the Attorney General in British Columbia and the federal Justice Department and was heard the last week of April. The Alberta Court of Appeal decided in February 1999 to delay a hearing about a similar case until after the British Columbia Court of Appeal decides Mr. Sharpe's appeal. However, Madame Justice Suzanne Bensler of the Court of Queen's Bench of...