scholarly journals Children in Pornography after Sharpe

2005 ◽  
Vol 43 (2) ◽  
pp. 327-350 ◽  
Author(s):  
Janine Benedet
Keyword(s):  
Supreme Court ◽  
Freedom Of Expression ◽  
Child Pornography ◽  
Criminal Code ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
Constitutional Protection ◽  
The Supreme Court ◽  
Definition Of

In its recent decision in R. v. Sharpe, the majority of the Supreme Court of Canada upheld the Criminal Code provisions prohibiting the possession and making of child pornography, subject to two exceptions. Despite a narrow construction of the definition of child pornography and a broad reading of the statutory defences, the majority found that prohibiting individuals from making and possessing some kinds of child pornography was an unjustifiable limit on the freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The dissent would have upheld the legislation in its entirety. This article argues that the majority of the Court erred in considering the value of freedom of expression in a detached and abstract manner. Operating in this abstract plane led the Court to approve two significant exceptions on the basis of hypothetical examples of overbreadth, without considering the reality of the exceptions as they relate to documented child pornography cases. As a result, the Court extended constitutional protection to some categories of material that are clearly harmful to children. This result should make us sceptical of the use in Charter cases of broad reading in remedies that create complex judicial amendments with unexamined consequences.

scholarly journals R. V. SHARPE AND THE DEFENCE OF ARTISTIC MERIT

2011 ◽  
Vol 12 (1, 2 & 3) ◽  
pp. 2001
Author(s):  
June Ross
Keyword(s):  
Supreme Court ◽  
Child Pornography ◽  
Criminal Code ◽  
Supreme Court Of Canada ◽  
Legal Proceedings ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
Artistic Merit ◽  
The Impact

The impact of judicial decisions is sometimes most significant and most controversial in relation to matters that were not at the forefront in the legal proceedings. The decision in R. v. Sharpe1 may be such a case. In this decision, the Supreme Court of Canada upheld, with minor qualifications, the offence of private possession of child pornography under section 163.1 of the Criminal Code.2 The case was argued and resolved largely as an issue of privacy — could the prohibition on child pornography extend to private possession, while remaining within constitutional limits?

scholarly journals SHARPE’S PERVERSE AESTHETIC

2011 ◽  
Vol 12 (1, 2 & 3) ◽  
pp. 2001
Author(s):  
Shannon Bell
Keyword(s):  
Sexual Activity ◽  
Freedom Of Expression ◽  
Child Pornography ◽  
Visual Representations ◽  
Criminal Code ◽  
Supreme Court Of Canada ◽  
Reasonable Person ◽  
The Supreme Court ◽  
Dominant Characteristic ◽  
Visual Materials

Robin Sharpe1 was charged with possession of child pornography under section 163.1 of the Criminal Code.2 He argued that the section violated his freedom of expression under the Canadian Charter of Rights and Freedoms.3 The Supreme Court of Canada found that the provision prohibited the possession of visual representations that a reasonable person would view as depictions of explicit sexual activity with a person under the age of eighteen. The Court found that the sexual nature of the representations must be determined objectively. That is, it must be the “dominant characteristic.”4 In addition, the Court found that the section prohibited possession of written or visual materials that actively induce or encourage sexual acts with children.5

scholarly journals The Kirpan: Justified Doctrine or Just a Dagger?

2016 ◽  
Vol 1 ◽  
Author(s):  
Sukhraaj Shergill
Keyword(s):  
Supreme Court ◽  
Criminal Code ◽  
Canadian Charter ◽  
The Supreme Court ◽  
Definition Of

<span id="docs-internal-guid-f4a11375-906b-8459-0e65-11d055438675"><span>This paper will synthesize the Multani argument under section 2a of the </span><span>Canadian Charter of Rights and Freedoms </span><span>(1982) and explain the significance of the Kirpan before progressing to synthesize the Commission scolaire Marguerite-Bourgeoys’ argument under section 7 of the </span><span>Canadian Charter of Rights and Freedoms </span><span>(1982). The paper will also lay out a preliminary understanding of section 88(1) of the </span><span>Criminal Code of Canada </span><span>as it explains the definition of a weapon in relation to section 267 of the </span><span>Criminal Code of Canada,</span><span> the crime of assault as related to the Commission scolaire Marguerite-Bourgeoys’ argument. The paper will then close by summarizing the Supreme Court of Canada’s judgement on the matter.</span></span>

scholarly journals After Labaye: The Harm Test of Obscenity, the New Judicial Vacuum, and the Relevance of Familiar Voices

2009 ◽  
Vol 46 (3) ◽  
pp. 741 ◽  
Author(s):  
Richard Jochelson
Keyword(s):  
Supreme Court ◽  
Freedom Of Expression ◽  
Tolerance Test ◽  
Supreme Court Of Canada ◽  
Obscenity Law ◽  
The Supreme Court ◽  
Tolerance Approach ◽  
Lower Courts ◽  
The Subject ◽  
Community Standards

In R. v. Labaye, the Supreme Court of Canada finally retired the community standards of tolerance test of obscenity. The test had been the subject of much academic critique, a matter that reached its zenith in the period following Little Sisters Book and Art Emporium v. Canada (Minister of Justice), in which a gay and lesbian bookshop contested the procedures and legislative regime of customs officials in detaining its imports. The engagement in the literature on the efficacy of the community standards test that followed was often heated, always interesting, and ultimately unresolved. To date, we have not seen any clarifying applications of the newly proposed harm test by the Supreme Court, nor have we seen a profound articulation in any lower courts. Subsequently, the academic discussion has slowed to a crawl. In this article, the author reviews four accounts of the community standards test that were prominent following Little Sisters, and asks if the newly proposed Labaye standard meets their concerns. The Labaye case provides much fodder for the previous critics and supporters of a community standards of tolerance approach to analyze. After a critical analysis of the new Labaye test, the author concludes that the concerns have not been muted by the retirement of the community standards test, even if the voices have been. The engaged voices heard in the aftermath of Little Sisters should not hold back and they should not abandon the work to be done in obscenity law and freedom of expression discourse generally.

scholarly journals Was the Supreme Court right to change the law on the right to a speedy trial?

2017 ◽  
Vol 26 (3) ◽  
pp. 1
Author(s):  
Leonid Sirota
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Reasonable Time ◽  
Canadian Charter ◽  
The Supreme Court ◽  
The Law ◽  
The Right ◽  
Speedy Trial

In R v Jordan, the Supreme Court of Canada held, by a 5-4 majority and over the vigorous disagreement of the concurrence, that criminal prosecutions in which a trial does not conclude by a set deadline will be presumed to breach the right to be tried within a reasonable time, protected by section 11(b) of the Canadian Charter of Rights and Freedoms. The acceptable length of proceedings set out in the decision is of 18 months from the day charges are laid for cases that proceed without a preliminary inquiry, and 30 months otherwise. The Crown can still show that exceptional circumstances outside of its control have arisen and can explain — and excuse — a case taking longer than that, but unless it does so, a stay of proceedings will be the automatic consequence of such delay. Meanwhile, an accused will be able to show that delay below these ceilings is unconstitutionally unreasonable, but only by demonstrating not only that the delay is “markedly” greater than reasonable, but also that he or she diligently sought to have the case heard sooner.

Party Capability Theory and Appellate Success in the Supreme Court of Canada, 1949–1992

1993 ◽  
Vol 26 (3) ◽  
pp. 523-540 ◽  
Author(s):  
Peter McCormick
Keyword(s):  
United States ◽  
Supreme Court ◽  
Data Base ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
The Supreme Court ◽  
Different Types ◽  
Party Capability ◽  
Appeal Courts ◽  
Different Levels

AbstractNow that the advent of the Canadian Charter of Rights and Freedoms has made the fact of judicial power so obvious, it is important to develop the conceptual vocabulary for describing and assessing this power. One such concept that has been applied to the study of United States and British appeal courts is the notion of “party capability theory,” which suggests that different types of litigant will enjoy different levels of success, as both appellant and respondent. Using a data base derived from all reported decisions of the Supreme Court of Canada between 1949 and 1992, this article applies party capability theory to the performance of Canada's highest court, and compares the findings with similar studies of American and British courts.

scholarly journals Mr. Suresh and the Evil Twin

Refuge ◽  
2002 ◽  
pp. 15-22
Author(s):  
Audrey Macklin
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
National Security ◽  
September 11 ◽  
The State ◽  
Supreme Court Of Canada ◽  
Wide Scope ◽  
Canadian Charter ◽  
The Supreme Court ◽  
Substantial Risk

In Suresh v. Minister of Citizenship and Immigration and Ahani v. MCI, the Supreme Court of Canada declared that removing a refugee accused of terrorism to a country where he or she would face a substantial risk of torture or similar abuse would virtually always violate the individual’s rights under s. 7 of the Canadian Charter of Rights and Freedoms. While the Court deserves praise for vindicating fundamental human rights over competing claims of national security, coming so close on the heels of September 11, the victory is in certain respects more apparent than real. Given the strong endorsement of judicial deference to the exercise of Ministerial discretion in national security matters, the Court leaves the state wide scope to circumvent the spirit of the judgment while adhering to its letter.

scholarly journals L'effectivité des décisions de justice en droit public interne [constitutionnel]

2005 ◽  
Vol 26 (4) ◽  
pp. 995-1003
Author(s):  
Louis-Philippe Pigeon
Keyword(s):  
Supreme Court ◽  
Public Law ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
Canadian Charter ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
High Degree ◽  
Political Character ◽  
Limited Scope

In practice, no question ever arises respecting the effectiveness of judicial decisions in matters of public law. Whether or not a judgment is technically executory is of no importance. There is such a high degree of respect for the decisions of the courts, specially those of the Supreme Court of Canada, that public authorities practically never feel free to seek a way out of compliance with a judicial pronouncement. Remedial powers of the courts are entrenched under the Canadian Charter of Rights and Freedoms and the Constitution is declared to be the supreme law of Canada. There is thus very limited scope for governmental action in defiance of court orders. The only specific provision for such action appears to be a section of the Extradition Act authorizing the Minister of Justice to refuse to surrender a fugitive if he determines that the latter's offence is of a political character.

Part V Rights and Freedoms, B Rights and Freedoms under the Charter, Ch.39 Equality and Anti-discrimination: The Relationship between Government Goals and Finding Discrimination in Section 15

2017 ◽  
Author(s):  
Lawrence Sonia
Keyword(s):  
Supreme Court ◽  
Complete Separation ◽  
Supreme Court Of Canada ◽  
Government Action ◽  
Canadian Charter ◽  
Doctrinal Development ◽  
Substantive Equality ◽  
The Supreme Court ◽  
The Relationship

This chapter considers the effect of section 1, the “justification” section of the Canadian Charter, on the doctrinal development of section 15, the equality section. It begins by describing the development of the section 15 substantive equality analysis, including the claim of a conceptually complete separation from the section 1 analysis of state justification. The chapter then identifies some features of section 15 which suggest that this separation is less than complete, including the existence of section 15(2), and anxieties over constraining government action. The chapter then turns to three post-2001 cases in which the Supreme Court of Canada found discrimination under the Charter but then held that discrimination was “justified” through section 1, and asks what these cases might reveal about the symbolic significance of a finding of discrimination and the Court’s struggle with institutional competence concerns in equality claims.

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