Talk:R v Sharpe
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I just researched this case here. It also seems relevant since it involves a case in Canada where people are prosecuted as a result of literature, which references the judgements made in this Sharpe case. Does it deserve an article? Tyciol (talk) 00:51, 24 June 2008 (UTC)
Reference from Lolicon#Legal status in Canada
This article is linked to from there, and references the following quote by McLachlin (representing the supreme court) presumably from Paragraph 38 of this trial:
- Interpreting "person" in accordance with Parliament's purpose of criminalizing possession of material that poses a reasoned risk of harm to children, it seems that it should include visual works of the imagination as well as depictions of actual people. Notwithstanding the fact that 'person' in the charging section and in s. 163.1(1)(b) refers to a flesh-and-blood person, I conclude that "person" in s. 163.1(1)(a) includes both actual and imaginary human beings.
This article mentions that he was charged with (4) and (3). (1) does not involve an actual charge, but rather clarifies the terms under which the following charges are written. I was hoping someone with a better understanding of this case might shed some light on some aspects of Judge McLachlin's statement. What would she mean by "charging section"? The word 'charging' does not show up in 163.1 at all. It is not clear which section she was referring to which would couple with (b) in regards to referencing only flesh and blood people.
I would think her judgement in this situation would imply that 163.1 should be rewritten to make this more clear, such as mentioning that it can apply to imaginary human beings. For example, the Person article on Wikipedia doesn't mention imaginary people being classed as a person. Nor does the Legal person article. While the subject of personhood is addressed in fiction, we do not consider fictional characters to be people. This is why the word 'character' (fictional character and non-fictional character respectively) exists, to denote that it is a characterization and not a real person. While it is certainly within the realm of the Supreme court to change laws or draft new ones, I think it is important that the wording of laws clearly state what it is they outlaw. Currently it is ambiguous.
It seems that this interpretation has set a precedent as in the origin linked in the title of this topic, a man was later convicted solely for possession of media portraying characters, presumably fictional ones. Tyciol (talk) 01:28, 24 June 2008 (UTC)
- "The charges in respect to Sharpe's writings were eventually dismissed when he argued artistic merit with the assistance of an English professor who compared his written works to 'transgressive expression' parallel to Marquis de Sade's 120 Days of Sodom."
I think this needs to be sourced. The text of the decision, which is the only source of the article that I see listed, does not contain the word 'professor' and the only use of the word 'english' is in describing an Oxford english dictionary. Where is the source of this data? Perhaps it was included in the court's decision process, but in that case, we would require data regarding that, because the decision text is not a source for it. I think it would also be interesting, if this data is publically available, to source the name and credentials of this Professor. That is only if it can be sourced by court documents of course. If they were private for the witness' protection then obviously they should stay so. Tyciol (talk) 01:43, 24 June 2008 (UTC)
Limitation versus violation
To me, these two terms used in the article hold different sorts of impacts. Is it appropriate to use them both, or just one? If so, which one should be used? This is in regards to the second sentence "'The Court upheld the child pornography provisions of the Criminal Code of Canada as a valid limitation of the right to freedom of expression..." compared to the opening sentence of the last section "Chief Justice Beverley McLachlin, writing for the majority, held that the provision in the Code violated the freedom of expression...". Furthermore the first says 'right to freedom of expression' and the second omits 'right to'. Which is more appropriate terminology? Tyciol (talk) 19:39, 3 July 2008 (UTC)
- A statute can "violate" the free speech right but still be valid as a rights "limitation" if it is saved despite being a rights violation by the criteria set out in the s. 1 rights limitation clause for justifying rights infractions. —Preceding unsigned comment added by 126.96.36.199 (talk) 00:32, 9 January 2011 (UTC)
User:Lairor saw fit to delete these four paragraphs. "Deleted last four paragraphs as they were mostly just analyzing this case as compared to other cases and was a violation of WP:NOR" I'm too tired to argue about it, however in general when doing mass deletions it's more polite to discuss it first. I'm adding them here for people who are interested in further details on the case, and if they are deemed relevant additions in the future.
- McLachlin was not the first to interpret it this way. Prior to her being appointed to the head of the Supreme Court by now-retired Governor General, Quebec artist Eli Langer had been prosecuted for his paintings very soon after the conservative legal party passed at a coinciding time. Langer was exonerated on the basis of artistic merit (completely exonerated, unlike Sharpe who was only partially exonerated) and not exonerated on the basis of it being a work of imagination that violated freedom of expression, which was the argument Sharpe attempted to use unsuccessfully.
- Langer's success in defending the artistic merit of his paintings can be partially attributed to his being able to defend his own work, the support of the Canadian art community, his prior status as an artist, and support from known people in the Canadian art community such as Michael Snow and Avrom Isaacs. The name of the english professor who defended Sharpe's writings is unknown. Unlike Langer, the people convicted via the precedent McLachlin's statement created only possessed the fictional cartoon pornography and did not create it themselves. They were thus less knowledgeable about the fiction and unequipped to defend it via the artistic merit clause. There is no information indicating that the artists who created the fictional cartoon pornography were not consulted or given the opportunity to defend it as art. This is something that may not be possible in cases of accessing pornography shared on the internet (such as through United States hosted imageboards such as 4chan) where the artist/author's name is not always displayed in partial art compilations.
- Most citizens do not know university professors or major figures in the Canadian art community whom they can call upon to interpret or defend Japanese artwork. This is a relevant factor in regards to prosecution of art imported from Japan, where a different language is spoken and there are relevant cultural differences that may interpret artistic interpretations. It is also relevant to manga which are scanlations in which someone dubbing english text over the Japanese text may mistranslate it, or purposefully rewrite it. They may mistakenly or purposefully rewrite a fictional character's age to be older or younger than the original artist, or their species to be human if they are not human, or non-human if they are human.
- This is relevant to the section (5) Defence on grounds of what the age the person is believed to be. In regards to fictional characters, since they have no real age (not being actual flesh and blood humans), the only relevant statement is in regards to the depiction of the age. In regards to rewrites, that can be change. 'Depiction' can also be interpreted on both the grounds of the written description of a character (via narration, speech bubbles and thought bubbles) as well as interpretation of the neotenic characteristics present in a character's illustration.