R v Sharpe

Sharpe upheld the bulk of Criminal Code s.163.1 (child pornography), reading in two narrow exceptions to preserve constitutionality: (1) self-created expressive material kept privately by the creator, and (2) recordings of lawful sexual activity created by or with consent of the persons depicted, kept privately.

Sharpe was charged with possessing child pornography. He challenged s.163.1.

Does s.163.1 violate s.2(b) of the Charter? If so, can the violation be saved or remedied?

Provision substantially upheld with narrow read-in exceptions.

Section 163.1 limits s.2(b) but is largely justified under s.1 because of the harm to children inherent in child pornography. Two narrow exceptions are read in to avoid criminalising conduct outside the legislative purpose: privately created expressive material and private recordings of lawful sexual activity.

McLachlin CJ held that the prevention of harm to children is pressing and substantial; the means are largely rational and minimally impairing. The narrow exceptions reflect what is proportionate; without them the law would unconstitutionally sweep in unrelated expressive activity.

Standard authority on child-pornography prosecutions. The two read-in exceptions remain rare in practice. R v Friesen (2020) reinforced sentencing severity for child sexual offences without disturbing Sharpe's substantive framework.

R v Sharpe, 2001 SCC 2, [2001] 1 SCR 45.

McLachlin CJ, L'Heureux-Dubé J, Gonthier J, Iacobucci J, Major J, Bastarache J, Binnie J, Arbour J, LeBel J