Sharpe back in court

Robin Sharpe, the man who took his constitutional challenge of Canada’s child pornography law all the way to the Supreme Court Of Canada, is back in court this week – this time with a high-profile Toronto lawyer by his side.

Sharpe says now a group of libertarians in Toronto are funding his defence. They’ve hired lawyer Paul Burstein, who recently argued that possessing marijuana shouldn’t be a crime.

Sharpe says he doesn’t know who his new backers are; but he knows who they aren’t. BC’s Civil Liberties Association was no help at all during the constitutional challenge, he says. He says they were more like saboteurs than friendly intervenors, navigating between rightwing arguments and protecting freedom of expression. Last week the BC Supreme Court, which is hearing the case, denied the association an intervenor status in this trial.

“They put politics before principle looking for what they believed would be acceptable,” he says.

Sharpe was charged with two counts of possessing child pornography and two counts of possession with the alleged intent to distribute child pornography in February 1998, three years after Canada Customs officials first discovered in his luggage computer disks containing a collection of his short stories and a handful of photos of two nude teenagers making out.

When the trial began in 1998, Sharpe filed a constitutional challenge to the law that eventually went all the way to the Supreme Court Of Canada.

He argued that criminalizing the possession of child porn violated his constitutionally guaranteed freedom of expression rights. The BC Supreme Court agreed with him and struck down the simple possession part of the law, while upholding the main prohibition against creating any visual or written representation of anyone who is, or appears to be, under 18 years old and engaged in a sexual act.

The federal government immediately appealed and didn’t stop appealing until the Supreme Court Of Canada heard the case in 2000 and overturned the rulings of two lower courts.

The Supreme Court ruled that any infringement on freedom of expression by the child porn law was justifiable due to the serious nature of sexual crimes against children. It did, however, make an exception for “self-created” writings and recordings of lawful, private acts by teenagers wishing to record their own sex lives – as long as they keep it to themselves.

Seven years after his legal journey began, Sharpe says he hasn’t accomplished anything.

“We’re stuck with a pernicious law,” he says. Sharpe says he is pleading “not guilty” and arguing that his fictional writings are protected by the artistic merit defence to the law. It’s just fiction, he he says, which doesn’t “advocate” or “counsel” anything.

Sharpe’s skill as a writer has received some acknowledgement. He is a former member of the Sodomy Invasion Review editorial team and of a West End writer’s club.

In his recent book on the Sharpe trial, gay writer and philosophy professor Stan Persky writes, “Sharpe’s standing as a recognized writer in his community, plus the fact that his stories are conventional to the extent of having characters, plots and denouements would appear to meet the requirements newly enunciated by [the Supreme Court Of Canada].”

Sharpe says he also plans to challenge the admissibility of the search warrant police used to enter and examine his apartment in 1996, a year after Customs went through his bags.