Robin Sharpe's Rationale

Decisions > Supreme Court Judgments > R. v Sharpe = Child Pornography is not a charter right.




Trial opens in Vancouver involving John Robin Sharpe and various sex charges
at 17:15 on February 23, 2004, EST.
GREG JOYCE

VANCOUVER (CP) - There were significant deficiencies by the Vancouver police department when it investigated allegations dating back more than two decades involving John Robin Sharpe, the accused's lawyer suggested Monday.

Sharpe, 70, set off a national debate four years ago when he challenged a narrow section of Canada's child-pornography laws. The B.C. Court of Appeal backed Sharpe but the Supreme Court of Canada upheld most of the law, allowing exceptions in areas of artistic merit, drawings and written works.

Sharpe, who has pleaded not guilty, is accused of gross indecency, indecent assault and sexual assault involving a young male whose identity is protected by law.

The Crown said the offences allegedly occurred between 1978 and 1983.

Det.-Const. Ray Biesick told B.C. Supreme Court he was assigned to the case that resulted in the current charges in May 2002 after police received a written complaint by the alleged victim.

Biesick told Crown counsel Elliot Poll that pictures were seized by police, who then interviewed Sharpe and told him he was being investigated because the complainant was between 10 and 13 at the time.

Under cross-examination by Sharpe's lawyer, Jim Heller, the officer said that in an initial interview with police the complainant said his "memory was a little sketchy."

Biesick said the complainant told him that Sharpe initially picked him up in the summer of 1979 while driving a brown station wagon.

Heller produced vehicle registration documents that showed Sharpe didn't own a brown station wagon until 1980; he owned a green station wagon in 1979.

The defence also produced other vehicle registration documents that showed Sharpe later owned a Pinto, but Biesick told the court the police were unable to find that information.

Heller suggested that the investigating officer had taken few notes - in regards to full disclosure by the Crown to the defence - and that was important in trying to establish whether the alleged victim was below or above the age of consent of 14.

As the trial began, the Crown handed out a series of photographs to the jury of nine men and three women that it said Sharpe took of the victim.

The Crown told the jury in its opening statement it will show that the accused took nude pictures of the boy as well as photos depicting acts of oral sex, masturbation and digital penetration.

Biesick acknowledged a suggestion by Sharpe's lawyer that the accused and the boy had a long-standing relationship and that the pair used to go on trips to Vancouver Island and the Okanagan.

"Did he (the complainant) tell you there were lots of pictures of a non-sexual nature?" asked Heller.

"That's possible," said Biesick.

Heller noted that Sharpe had moved several times while he knew the boy, but the police did not take any notes as to specific times or locations in order to firmly establish the boy's age.

"Did you take notes on the specific sites that could help establish the age?" asked Heller.

"No," said Biesick.

"He (the boy) said (in his initial statement) that he never smiled in the pictures, but he is smiling in some of them," said Heller. "Did you makes notes on any of that conversation?"

"No."

"Didn't you think it was important to capture his statements for full disclosure?"

"It should have been, yes," said Biesick.

Biesick also told the court that police only interviewed the alleged victim's mother in the past few weeks.

"He didn't want us to talk to her," said Biesick.

Justice Robert Edwards allowed Sharpe to leave the prisoner's box at the start of his trial and sit directly behind his lawyer, who said his client was hard of hearing and would also be assisting in his own defence.

 

Sharpe trial again focuses attention on Canada's difficulty legislating mores


Ian Mulgrew

Vancouver Sun


Tuesday, February 24, 2004

John Robin Sharpe, the much-despised man who challenged Canada's child pornography laws, sat calmly taking notes Monday as a boy he knew a quarter century ago began testifying against him.

A tall, barrel-chested silver-haired septuagenarian -- vilified for his unrepentant, strident love of boys, Sharpe has pleaded not guilty to sexual assault, gross indecency and indecent assault.

It is expected to take a week to sort out what happened from the spring of 1979 through the fall of 1983 between the now-70-year-old Sharpe and the boy, who now is 35 and cannot be named.

Their acquaintance straddles the boy's 14th birthday -- Aug. 4, 1982 -- so there are questions surrounding consent among the other important elements of these charges.

And this prosecution again focuses attention on the nation's difficulty in legislating sexual mores.

"He is not on trial for his lifestyle or character," B.C. Supreme Court Judge Robert Edwards emphasized to the jury of three women and nine men who are hearing the case.

No criminal trial is easy, but this one is exceedingly difficult.

Few will forget the furor that followed Sharpe's earlier trial roughly six years ago.

B.C. Supreme Court Justice Duncan Shaw was lambasted across the country and dubbed "Mr. Justice Bonehead" when he struck down the smut law and acquitted Sharpe of possessing child pornography.

The case went all the way to the Supreme Court of Canada, which ruled against Shaw and upheld the federal law, with some exceptions.

Since then, Ottawa has proposed a rewritten version of the law, but that bill is also thought vulnerable to legal challenge.

The issues here, however, are even more volatile because they involve not just possessing so-called child porn, but the alleged molestation of an adolescent boy.

I think they are especially controversial given the history of the case and because at his re-trial the judge said there was no evidence Sharpe ever committed a sexual offence.

These charges flow directly from that pornography prosecution and Sharpe's lawyer Jim Heller suggested the Vancouver police department sought the children in the photos seized from Sharpe in 1996 only after that case foundered.

The complainant in this case came forward in 2002 after hearing a police radio appeal seeking anyone who might have posed for Sharpe.

The man appears in numerous photos -- a sheaf of which was presented to the jury -- some sexually explicit, such as one of a penis adorned with a bow, and others that are non-sexual in nature.

But the court has been told the man apparently has only vague and hazy recollections of the time he spent with Sharpe and Heller underscored at every opportunity that there is no corroborating evidence for his allegations.

Although he has only begun to testify, the man seems filled with bile towards his mother -- describing a horrific childhood in which there were so many cockroaches in their basement apartment he could see them running behind the dials of the stereo.

He said his mother was a negligent night owl who failed to feed or properly care for him.

The court has heard the woman, who police did not speak with until only a few weeks ago, disputes that portrayal.

The man will continue on the stand today describing how he met Sharpe and the nature of their relationship.

imulgrew@png.canwest.com

© The Vancouver Sun 2004

Complainant testifies at Sharpe trial


By GREG JOYCE

 

VANCOUVER (CP) - The alleged victim in the sex assault trial of John Robin Sharpe says he regarded the accused as a friend and father figure even as he negotiated money with Sharpe for nude pictures and sex acts.

As curious teenage students filed in and out of the courtroom Tuesday, the man testified candidly and usually without embarrassment about posing for hundreds of pictures for Sharpe and soon after engaging in masturbation, oral sex and digital penetration of his anus.

The man, who said he believed he was in Grade 6 when he first met Sharpe in the early 1980s, testified the accused sometimes paid for the pictures and sex. At other times the victim had to argue with him for payment.

"It was always a bone of contention," the complainant told Justice Robert Edwards of B.C. Supreme Court. "He didn't want to pay (for sex acts). He said, 'You're enjoying this.' "

Sharpe, 70, sparked a nationwide debate four years ago when he challenged a narrow section of Canada's child-pornography laws.

The B.C. Court of Appeal backed Sharpe but the Supreme Court of Canada upheld most of the law, allowing exceptions in areas of artistic merit, drawings and written works.

Sharpe, who has pleaded not guilty, is accused of gross indecency, indecent assault and sexual assault involving a young male whose identity is protected by law.

A crucial part of the case rests on whether the boy was above or below the age of consent of 14.

The victim, now 35, said he met Sharpe while hitchhiking and agreed the same day to allow the accused to take photographs of his genitals for $15.

He said Sharpe made him feel comfortable from the outset and, in his frequent, subsequent visits, said the accused lavished him with attention and kindness he didn't get from his mother.

Sharpe played catch with him and taught him chess, backgammon, crib and poker, he said.

"He was patient and nice, just like a buddy."

Sharpe also provided him with beer, marijuana, hashish and cigarettes, he told the court.

The man told the jury of nine men and three women that he enjoyed visiting Sharpe and after a time stayed with him overnight, sleeping with him in his bed.

"I remember waking up to the smell of toast and coffee and frying eggs," the man testified, smiling at the memory.

That warm recollection came moments after answering Crown counsel Elliot Poll's questions about the sex acts.

The first time the relationship went from nude pictures to sex acts - a month or two after their initial meeting - was when Sharpe "talked about sex and I was mesmerized.

"He asked me to do a certain act. Either I gave him a hand job or he performed oral sex on me."

The man recalled visiting Sharpe between one and three times a week.

"I liked going there," he testified. "He was like a father, a buddy, a friend. He listened to me more than I ever got at home."

When the witness was asked about any other sex acts, he hesitated and wondered aloud how much detail he should go into.

The Crown told him that "one of the down sides" of a trial involving such charges was that he had to go into as much detail as he could recall.

He then described Sharpe's desire to put his finger into the witness's anus.

He said he initially found it shocking and the accused immediately stopped. But he said "I got used to it after awhile."

The witness said Sharpe tried to persuade him to engage in anal sex but he refused.

He said Sharpe once invited him to watch while Sharpe and another man had sex, and yet another time when Sharpe and a woman had sex.

On another occasion, he testified Sharpe asked him if he wanted to have sex with a female friend of the man Sharpe had had sex with.

He refused, he said.

Sharpe once offered to "buy me a prostitute" when I turned 15, he testified, adding that by the time he turned 15 his relationship with Sharpe had ended.

Although a crucial part of the trial is whether the witness was under 14, the Crown took him through many nude pictures and most of the time he was unable to recall his age when they were taken.

In his testimony Monday, the witness described a nightmarish childhood with a mother who slept in most mornings, rarely cooked for or fed her children, collected welfare, and had five children with three different fathers




Sharpe not guilty of possessing written child pornography

CBC News Posted: Mar 26, 2002 10:03 PM ET Last Updated: Mar 26, 2002 10:03 PM ET













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John Robin Sharpe is not guilty of possessing or distributing written child pornography, British Columbia Supreme Court Judge Duncan Shaw ruled on Tuesday.

INDEPTH: The Supreme Court and child porn

But he was found guilty of two counts of possessing pornographic pictures of children, a finding that was expected because he had admitted the facts in one of the two situations.

The judge said Sharpe's defence on the written material succeeded on two grounds.

First, he said written material must advocate committing a sexual crime with a child to be illegal.

"These writings simply describe morally repugnant acts," the judge said, but the stories "do not actively advocate or counsel the reader to engage in the acts described." Therefore, they are not illegal.

Shaw also said the stories had artistic merit, based on testimony from two out of three experts. Artistic merit is a defence, "irrespective of whether the work is considered pornographic," he wrote.

Sharpe will be sentenced for possession of the pictures on May 2. Judge Shaw has asked for a report on electronic monitoring.

Sharpe could be jailed, placed under house arest with an electronic monitor, or receive a lesser sentence.

The ruling was welcomed as increasing literary freedom by Sharpe and his lawyer, but denounced as harmful to children by Rosalind Prober, co-founder of Beyond Borders, an organization dedicated to protecting children.

"It still is a crime to possess child pornography," said prosecutor Terry Schultes.

The B.C. government could appeal the finding, further extending a case which began in 1995 when Sharpe was caught at the U.S.-Canada border carrying some of the pictures and stories that were the subject of Shaw's ruling.

Vancouver police later searched his house and found additional stories and pictures. Sharpe's case came to national attention after he won a trial and then an appeal in B.C. based on his constitutional challenge of the child pornography law.

Amid a wave of anger, the federal and six provincial attorneys-general appealed the B.C. ruling to the Supreme Court of Canada. In January 2001, the top court upheld the ban on possessing child pornography, with two exceptions.

One said that people can't be prosecuted for written or visual materials created for their their own use and the other allows visual materials as long as photos don't show unlawful acts and are for the owner's own use.

The Supreme Court sent Sharpe's case back for retrial in B.C., which took place in January.