Decision of the Supreme Court of British Columbia
on the retrial of items passed back by the Supreme Court of Canada.

Citation: R. v. Sharpe Date: 20020326
2002 BCSC 423 Docket: X050427
Registry: VANCOUVER

IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN

HER MAJESTY THE QUEEN
RESPONDENT

AND

JOHN ROBIN SHARPE
DEFENDANT

REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE SHAW

Counsel for the Crown:
Terrence Schultes
Michelle Wray
Counsel for the Defendant:
Paul Burstein

Date and Place of Trial:
January 21-24, 28-31, & February 4-7, 2002
VANCOUVER, BC

 

[1] John Robin Sharpe is charged with two counts of possession of child pornography and two counts of possession of child pornography for the purpose of distribution or sale, as follows:

Count 1

He, on or about the 10th day of April, 1995, at or near Surrey, in the Province of British Columbia did have in his possession for the purpose of distribution or sale, child pornography: computer discs containing a text entitled Sam Paloc’s Boyabuse Flogging, Fun and Fortitude - A Collection of Kiddiekink Classics, contrary to Section 163.1(3) of the Criminal Code.

Count 2

He, on or about the 10th day of April, 1995, at or near Surrey, in the Province of British Columbia did have in his possession child pornography: computer discs containing a text entitled Sam Paloc’s Boyabuse Flogging, Fun and Fortitude - A Collection of Kiddiekink Classics and photographs, contrary to Section 163.1(4) of the Criminal Code.

Count 3

He, on or about the 13th day of May, 1996, at or near the city of Vancouver, in the Province of British Columbia did have in his possession, for the purpose of distribution or sale, child pornography: books, manuscripts and stories, contrary to Section 163.1(3) of the Criminal Code.

Count 4

He, on or about the 13th day of May, 1996, at or near the city of Vancouver, in the Province of British Columbia did have in his possession child pornography: books, manuscripts, stories and photographs, contrary to Section 163.1(4) of the Criminal Code.

[2] The alleged child pornography consists of written materials (Counts 1, 2, 3 and 4) and photographs (Counts 2 and 4).

[3] In these reasons for judgment I will deal with the photographs and with the written materials separately, as the law applicable to photographs is different from that relating to written works.

[4] Two separate events gave rise to the charges against Mr. Sharpe. The first occurred on April 10, 1995 and is the subject of Counts 1 and 2. Mr. Sharpe was returning to Canada by bus from the United States when he was apprehended by Canada Customs officials at the Pacific Highway border crossing. Several items were seized from Mr. Sharpe at that time, including:

• photographs of nude Caucasian boys in sexually provocative poses displaying their genital organs;

• film which was later developed into several photographs of a dark skinned boy, also in sexually provocative poses displaying his genital organs and his anal area; and

• seven computer discs which, when downloaded and printed, formed a 245 page collection of stories entitled Sam Paloc’s Boyabuse: Flogging, Fun and Fortitude – A Collection of Kiddiekink Classics. I will refer to this collection of stories as “Boyabuse”.

[5] The second event involved a seizure at Mr. Sharpe’s apartment in Vancouver, B.C. on May 13, 1996, and is the subject of Counts 3 and 4. This seizure was undertaken pursuant to a search warrant. The material seized in his apartment included a collection of approximately 400 photographs of boys, most displaying their genital organs or anal regions, and some depicting the boys engaged in explicit sexual activity. The seizure also included numerous writings authored by Mr. Sharpe; some in print, but most saved on computer discs. One such work was a short story entitled “Stand By America, 1953”.

[6] During the course of the trial, Crown counsel advised the court that the short story Stand By America, 1953 is the only written work that the Crown alleges is child pornography under Counts 3 and 4.

[7] Mr. Sharpe does not dispute that the photographs seized at the border crossing and at his apartment are child pornography as defined by s. 163.1 of the Criminal Code. Mr. Sharpe contends, however, that he has a defence to Count 2 in respect of the photographs seized at the border crossing, based upon an exception to s. 163.1 articulated by the Supreme Court of Canada in R. v. Sharpe (2001), 150 C.C.C. (3d) 321. I will deal with this defence later in these reasons.

[8] Boyabuse is 245 pages in length. It consists of 17 short stories, the titles and summaries of which are set out below.

[9] 
No. 1  On a Cold Winter’s Evening
This is a very short story describing fellatio between a man and his paperboy. There is no violence. (4 pages)

No. 2  Platinum and Gold
This is a story of man-boy and boy-boy sexual relations in Manila. There is no violence. (8 pages)

No. 3  The Spanking
A spanking with a leather strap is delivered by an uncle to his young nephew. The nephew takes the spanking with fortitude. (4 pages)

No. 4  Let this be a Lesson
A father flogs his son who was caught with a pornographic magazine. The son takes the beating with courage and refuses to tell his father who gave him the magazine. (4 pages)

No. 5  Suck It - A Devotee’s Lament
This story involves a man performing oral sex on a boy. The boy is in control of what occurs. (2 pages)

No. 6  Timothy and the Terrorist
A boy is kidnapped from his parents in the mythical city of Basura. The story is summarized by the author in a note under the title. The note reads: Young, Innocent White Boys Sold as Sex Slaves to a Sadistic and Murderous Sultan Plot their own Freedom and Overthrow a Corrupt and Hated Regime in the Process.

The story contains beatings, man-boy and boy-boy sexual acts and a circumcision. The boys rebel and ultimately triumph over the sultan. (25 pages)

No. 7  Tijuana Whip Fight
This story describes a whip fight between boys in Tijuana before paying spectators. There is some man-boy sex and floggings. The predominant theme is fortitude. (12 pages)

No. 8  The Rites at Port Dar Lan: Part One
This story involves circumcision rites at an isolated settlement on the coast of Borneo. There are numerous floggings, in addition to man-boy and boy-boy sexual relations. There is some torture. Fortitude is a significant theme. There is mutilation of the foreskin of boys undergoing circumcision. This story is the first of three connected stories. (25 pages)

No. 9  Warriors of Paradise
This is a story of an intifada group of boys. Sexual relations play a role, as does the situation of the group as insurgents. (6 pages)

No. 10  Mission Successful
This is a story of Tamils in Sri Lanka. A young lad is about to embark upon a suicide mission. Man-boy sex takes place before the boy leaves on the mission. (6 pages)

No. 11  The Cameraman
A paedophilic filmmaker creates a film filled with sexual relations and orgies at a remote South Seas location. (26 pages)

No. 12  The Rites at Port Dar Lan: Part Two
This is a sequel to story No. 8. The story is similar, but occurs two years later. (23 pages)

No. 13  Leo
The setting is a boys’ school. The narrator is in charge of discipline which takes the form of flogging. This leads to man-boy love and sexual relations between the narrator and a boy at the school named Leo. (15 pages)

No. 14  Ricky
This is a sequel to No. 13. There are floggings and sexual relations between Leo and another boy at the school named Ricky. (18 pages)

No. 15  Lucy’s End
Set in a wilderness camp in northern Canada for boys in trouble with the law, this story involves man-boy and boy-boy sexual relations. There is also a game involving flogging and some torture. One of the boys is considered a sissy and, because of this, the other boys give him a girl’s name, Lucy. During the game, Lucy proves he has fortitude and the nickname Lucy comes to an end. (22 pages)

No. 16  Ninja Option
The setting for this story is explained by the author in a note below the title. The note reads: An alternative scenario starting at the third paragraph, page 284 of the Ninja by Eric Van Lustbader, Fawcett Crest Books paperback 1980. The initial situation and all characters are from the novel.

This story presents a clash of wills between a cruel Japanese captor and a captive Chinese-American boy. There are scenes of sex and cruelty. The boy emerges the winner. (9 pages)

No. 17  The Rites at Port Dar Lan: Part Three
This is the last episode of The Rites at Port Dar Lan. The central character, Jojo, is finally ready for his circumcision. Sexual relations, beatings and torture are described, in addition to Jojo’s painful circumcision. (23 pages)

[10]  The story Stand By America, 1953
is 32 pages in length. In a note below the title, the author gives a brief description of the story, as follows: Four young American boys are abducted by KGB agents and tortured to reveal the secret of the ultimate weapon of war. Only their grit and patriotism can prevent a Communist take over of the America they love… or so they believe.

Two sadistic brothers posing as KGB agents intercept a small group of boys while they are on a hike. The setting is 1953, during the time of the Senator McCarthy witchhunt of Americans with present or past Communist affiliations. Under the ruse that the boys have found a briefcase containing important secrets, the two men subject the boys to torture and sexual relations and force the boys to participate in similar activities between themselves. The fortitude shown by the boys plays a large role in this story. There are obvious parallels between parts of this story and the film Stand By Me.

THE PHOTOGRAPHS

[11] Subsection 163.1(1)(a) of the Criminal Code sets out the definition of child pornography applicable to photographs. The definition reads:

1. a photograph, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

1. that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

2. the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;

The Photographs Seized at the Border: Count 2

[12] These photographs depict two Caucasian boys and a dark-skinned boy displaying their genital organs and anal regions. The expert evidence led by the Crown indicates the boys were likely 13 to 15 years of age when the photographs were taken.

[13] Mr. Sharpe argues that these photographs come within one of the exceptions to the child pornography provisions enunciated by the Supreme Court of Canada in R. v. Sharpe, supra. The particular exception is the private consensual recording of lawful sexual activity.

[14] McLachlin C.J.C. in R. v. Sharpe stated the exception as follows, at para. 115:

2. Private recordings of lawful sexual activity: i.e., any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use.

[15] To raise the exception, there must be evidence before the court capable of establishing its application. Once this hurdle has been overcome, the burden then shifts to the Crown to prove beyond a reasonable doubt that the exception does not apply. McLachlin C.J.C. explained this at para. 116 of Sharpe, supra, as follows:

The accused would raise the exception by pointing to facts capable of bringing him or her within its protection, at which point the Crown would bear the burden of disproving its applicability beyond a reasonable doubt.

[16] Mr. Sharpe submits that the evidence before the court is capable of showing that any sexual activity depicted in the photographs was lawful and that the photographs were intended exclusively for his own private use. He contends, therefore, that the onus to disprove the application of the exception beyond a reasonable doubt falls on the Crown, and that the Crown has failed to discharge this burden.

[17] Mr. Sharpe submits that the evidence shows that the boys depicted in the photographs were likely 14 years of age or older. He contends that because the age of consent to engage in sexual activity in Canada is 14, any sexual activity depicted in the photographs was lawful. He also contends that the photographs were kept in his private possession. Thus, he argues, the photographs come within the above-noted exception.

[18] I do not accept Mr. Sharpe’s submission. In my view, the evidence does not bring Mr. Sharpe within the exception, as elaborated by McLachlin C.J.C. at para. 116 of Sharpe:

The second category would protect auto-depictions, such as photographs taken by a child or adolescent of him- or herself alone, kept in strict privacy and intended for personal use only. It would also extend to protect the recording of lawful sexual activity, provided certain conditions were met. The person possessing the recording must have personally recorded or participated in the sexual activity in question. That activity must not be unlawful, thus ensuring the consent of all parties, and precluding the exploitation or abuse of children. All parties must also have consented to the creation of the record. The recording must be kept in strict privacy by the person in possession, and intended exclusively for private use by the creator and the persons depicted therein. Thus, for example, a teenage couple would not fall within the law’s purview for creating and keeping sexually explicit pictures featuring each other alone, or together engaged in lawful sexual activity, provided these pictures were created together and shared only with one another.

[19] The foregoing passage indicates that to come within the exception the photographs must have been kept in the strict privacy of the person found to be in possession. This poses a problem for Mr. Sharpe as there is no evidence to suggest he kept the photographs in strict privacy. The passage also indicates that the photographs must have been intended for the private use of the parties depicted therein. There is no evidence before the court that the photographs were intended for the private use of the boys photographed.

[20] On both these grounds Mr. Sharpe fails to bring himself within the protection of the exception. I therefore reject Mr. Sharpe’s submission.

[21] I have viewed the photographs and am satisfied beyond a reasonable doubt that they are child pornography as defined by sub-s. 163.1(1)(a). Mr. Sharpe’s counsel does not suggest otherwise.

[22] I find Mr. Sharpe guilty of Count 2 in respect of the photographs.
Photographs Seized at Mr. Sharpe’s Apartment: Count 4

[23] The collection found by the police in Mr. Sharpe’s apartment contained approximately 400 photographs. It is not disputed that most of the photographs depict, for a sexual purpose, the sexual organs or the anal region of boys under the age of 18. Nor is it disputed that many of the remaining photographs depict boys under the age of 18 engaged in explicit sexual activity.

[24] During the course of the trial, Mr. Sharpe argued that the material seized in the search of his apartment ought not to be allowed in evidence. He argued that the search warrant authorizing the search was invalidly issued and that the court should exercise its power under s. 24(2) of the Canadian Charter of Rights and Freedoms to exclude the materials as evidence in this trial. I refused Mr. Sharpe’s request and ordered that the seized materials be received in evidence.

[25] As a result of this ruling, Mr. Sharpe does not now oppose a finding of guilt on Count 4 relating to the photographs.

[26] I find Mr. Sharpe guilty of Count 4 in respect of the photographs.

THE WRITTEN MATERIALS

[27] In respect of written materials, “child pornography” is defined by sub-s. 163.1(1)(b) of the Criminal Code as:

(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

Advocates or Counsels

[28] The words “advocates or counsels” are of particular importance. Unless written material advocates or counsels the commission of sexual crimes with children under 18 years of age, the possession of such material is not a crime under the child pornography provisions of the Criminal Code.

[29] The Supreme Court of Canada in Sharpe provides guidance as to the meaning of the words “advocates or counsels” at paras. 55 to 57 of the judgment:

This section is more limited than the definition of “visual pornography” in s. 163.1(1)(a), which captures sexual “representations” of children. Section 163.1(1)(b) is confined to material relating to activity that would be a crime under the Criminal Code. Moreover, it is confined to material that “counsels” or “advocates” such crimes. On its face, it appears to be aimed at combating written and visual material that actively promotes the commission of sexual offences with children.

At stake is not whether the maker or possessor of the material intended to advocate or counsel the crime, but whether the material, viewed objectively, advocates or counsels the crime. “Advocate” is not defined in the Criminal Code. “Counsel” is dealt with only in connection with the counselling of an offence: s. 22 of the Criminal Code, where it is stated to include “procure, solicit or incite”. “Counsel” can mean simply to advise; however, in criminal law it has been given the stronger meaning of actively inducing: see R. v. Dionne (1987), 38 C.C.C. (3d) 171 (N.B.C.A.) at p. 180, per Ayles J.A. While s. 22 refers to a person’s actions and s. 163.1(1)(b) refers to material, it seems reasonable to conclude that in order to meet the requirement of “advocates” or “counsels”, the material, viewed objectively, must be seen as “actively inducing” or encouraging the described offences with children. Again, Parliament’s purpose of capturing material causing a reasoned risk of harm to children may offer guidance. The mere description of the criminal act is not caught. Rather, the prohibition is against material that, viewed objectively, sends the message that sex with children can and should be pursued.

Without suggesting that the distinction is easy to apply in practice, a purposive approach appears to exclude many of the alleged examples of the law’s overbreadth. For instance, works aimed at description and exploration of various aspects of life that incidentally touch on illegal acts with children are unlikely to be caught. While Nabokov’s Lolita, Boccaccio’s Decameron, and Plato’s Symposium portray or discuss sexual activities with children, on an objective view they cannot be said to advocate or counsel such conduct in the sense of actively inducing or encouraging it. Nor would the section catch political advocacy for lowering the age of consent because such advocacy would not promote the commission of an offence but the amendment of the law. Likewise, an anthropological work discussing the sexual practices of adolescents in other cultures and describing such adolescents as well adjusted and healthy would not be caught because it would be merely descriptive as opposed to advocating or counselling illegal acts. I note that in any event these examples would likely fall within the artistic merit, medical, educational, scientific, or public good defences, discussed below.

[30] Mr. Sharpe and the Crown emphasize different aspects of the foregoing passages. Mr. Sharpe stresses the word “actively” in the sense of actively inducing or encouraging the commission of sexual crimes against children. He also highlights the expression, “the mere description of the criminal act is not caught” and contends that this applies to Boyabuse and Stand By America, 1953.

[31] On the other hand, the Crown emphasizes the sentence “Rather, the prohibition is against material that, viewed objectively, sends the message that sex with children can and should be pursued.” The Crown contends Boyabuse and Stand By America, 1953 send this message.

[32] Regardless of the approach I apply, I arrive at the same conclusion; that Boyabuse and Stand By America, 1953 do not counsel or advocate the commission of sexual crimes against children.

[33] While Boyabuse and Stand By America, 1953 arguably glorify the acts described therein, in my opinion they do not go so far as to actively promote their commission. The descriptions may well be designed to titillate or excite the reader (if the reader is so inclined) but these descriptions do not actively advocate or counsel the reader to engage in the acts described.

[34] Nor, in my view, do Boyabuse and Stand By America, 1953 send “the message” that sex with children can and should be pursued. If that were the case, then literature describing murder, robbery, theft, rape, drug use and other crimes in such a way as to make them appear enjoyable would likewise be said to advocate or counsel the commission of those crimes. In my opinion, such literature is not what the “advocates or counsels” requirement is intended to capture.

[35] Where written material is simply a thinly disguised exhortation to seduce children or to otherwise make them prey to sexual crimes, such writing may well advocate or counsel such crimes. But that is not the case with Boyabuse and Stand By America, 1953. These writings simply describe morally repugnant acts.

[36] I therefore find that Boyabuse and Stand By America, 1953 do not fall within the “advocates or counsels” requirement of the Criminal Code. It follows that Mr. Sharpe is not guilty of all counts insofar as they relate to Boyabuse and Stand By America, 1953.

[37] I would add that even if there was some substance to the proposition that the stories send the message that sex with children can and should be pursued, I would none the less find that there is reasonable doubt on that issue. Any reasonable doubt must, of course, fall in favour of Mr. Sharpe and result in his acquittal in respect of the written materials.

[38] In the event I am in error on the “advocates and counsels” issue, I propose to address the defence of “artistic merit”. This defence was thoroughly canvassed by counsel in evidence and in submissions at trial.

ARTISTIC MERIT

[39] The defence of artistic merit is articulated in sub-s. 163.1(6) of the Criminal Code, which reads as follows:

(6) Where the accused is charged with an offence under subsection (2), (3) or (4), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.

[40] The Supreme Court of Canada interpreted the defence of artistic merit in R. v. Sharpe, supra. McLachlin C.J.C. said, at paras. 63 and 64:
[…] I conclude that “artistic merit” should be interpreted as including any expression that may reasonably be viewed as art. Any objectively established artistic value, however small, suffices to support the defence. Simply put, artists, so long as they are producing art, should not fear prosecution under s. 163.1(4).

What may reasonably be viewed as art is admittedly a difficult question – one that philosophers have pondered through the ages. Although it is generally accepted that “art” includes the production, according to aesthetic principles, of works of the imagination, imitation or design (New Shorter Oxford English Dictionary on Historical Principles, Vol. 1, p. 120), the question of whether a particular drawing, film or text is art must be left to the trial judge to determine on the basis of a variety of factors. The subjective intention of the creator will be relevant, although it is unlikely to be conclusive. The form and content of the work may provide evidence as to whether it is art. Its connections with artistic conventions, traditions or styles may also be a factor. The opinion of experts on the subject may be helpful. Other factors, like the mode of production, display and distribution, may shed light on whether the depiction or writing possesses artistic value. It may be, as the case law develops, that the factors to be considered will be refined.

[41] It is important to note that the artistic merit defence to a charge of possession of child pornography is significantly different from the artistic merit defence to a charge under the obscenity provisions of the Criminal Code. On an obscenity charge the artistic merit defence is limited by the community standards of tolerance test. The artistic merit defence to possession of child pornography is not so limited. In this regard, McLachlin C.J.C. for the majority said, at para. 65:

[…] I am not persuaded that we should read a community standards qualification into the defence. To do so would involve reading in a qualification that Parliament has not stated. Further, reading in the qualification of conformity with community standards would run counter to the logic of the defence, namely that artistic merit outweighs any harm that might result from the sexual representations of children in the work. Most material caught by the definition of “child pornography” could pose a potential risk of harm to children. To restrict the artistic merit defence to material posing no risk of harm to children would defeat the purpose of the defence. Parliament clearly intended that some pornographic and possibly harmful works would escape prosecution on the basis of this defence; otherwise there is no need for it.

And further at para. 67:

[…] The statutory defence of artistic merit to a charge of possession of child pornography is conceptually different from the defence of artistic merit to a charge of obscenity under s. 163 of the Criminal Code. With respect to s. 163, the meaning of obscenity and the defence of artistic merit are largely judicial creations. It turns on whether the sexual portrayal is the dominant purpose of the work, on the one hand, or essential to a wider artistic purpose, on the other (the internal necessities test). It also asks whether the sexual aspect of the work, viewed in context, would meet community standards of tolerance. The definition of “child pornography”, by contrast, stands independent of the defence of artistic merit, making the language of “internal necessity” and the logic of “either obscenity or art” inapposite.

[42] In R. v. Sharpe, McLachlin C.J.C. addressed how the defence of artistic merit functions procedurally. She said, at para. 66:

The third issue is how the artistic merit defence functions procedurally. The test, as mentioned, is objective. The wording of the section suggests that it functions in the same manner as other defences such as self-defence, provocation or necessity. The accused raises the defence by pointing to facts capable of supporting it (generally something more than a bare assertion that the creator subjectively intended to create art), at which point the Crown must disprove the defence beyond a reasonable doubt: see Langer, supra.

Witnesses

[43] Four expert witnesses gave evidence at the trial. Three of the experts were English professors and the fourth was a psychiatrist. I will deal individually with each of these witnesses.

[44] It was common ground throughout the trial that where the witnesses and counsel used the expression “literary merit” it was meant in the same sense as “artistic merit”. In these reasons for judgment, I also use these expressions interchangeably.

Professor James L. Miller

[45] James L. Miller was called by the defence. He is an English professor at the University of Western Ontario. His courses have included comparative literature, gay literature, transgressive literature, literature of taboo, literary theory and methods of literary criticism.

[46] In Professor Miller’s opinion, both Boyabuse and Stand By America, 1953 have literary or artistic merit. In arriving at his opinion, Professor Miller analyzed Boyabuse and Stand By America, 1953 from various perspectives, each of which is discussed below.

Form and content

[47] In respect of both Boyabuse and Stand By America, 1953, Professor Miller found evidence that they had been organized, edited, revised and conceived as publishable works.

Genre

[48] Professor Miller described the genre of Boyabuse as an anthology of linked short stories. This, he said, is a recognizable literary form. He identified themes which linked the stories together. He also found that some of the stories were linked chronologically.

[49] In his view, all 17 stories in Boyabuse, in addition to the story Stand By America, 1953, are parodies. The parodies are either structural or rhetorical. He defined “parody” as the mocking of something for satire or for comic effect.
[50] Professor Miller gave examples of Mr. Sharpe’s use of parody in each one of the 17 chapters of Boyabuse and in Stand By America, 1953.

Allegory

[51] Professor Miller spoke of allegory as a veiled allusion which, in writing, has come to mean an extended comparison. Put another way, it is a narrative constructed so as to clue the reader to other meanings, themes, topics or events besides those expressly articulated.

[52] He found allegory in both Boyabuse and Stand By America, 1953 and cited numerous examples.

Characterization

[53] Professor Miller identified characterization in much of Mr. Sharpe’s work. Again, he cited examples.

[54] He agreed with Professor Delaney (who was called as a Crown witness) that in the early short stories of Boyabuse, there is little characterization. However, he strongly disagreed with Professor Delaney who, in effect, found no evidence of characterization at all. Professor Miller cited examples of characterization.

Plot

[55] Professor Miller gave evidence that events in a story create a plot when they are arranged in a strategic sequence. This may be chronological or non-chronological (flashbacks and forwards). He noted that most of Mr. Sharpe’s stories are chronological.

[56] He was asked about Professor Delaney’s opinion that all of the stories in Boyabuse have the same basic plot, which is presented badly, without literary skill, without complexity and without significant variation. He agreed with Professor Delaney in respect of the first five stories in Boyabuse. He observed, however, that these stories are all very short, together comprising only a small portion of the whole of Boyabuse (22 of 245 pages).

[57] Professor Miller disagreed with Professor Delaney with respect to the sixth story, Timothy and the Terrorist, and all of the stories thereafter. Professor Miller expressed the view that Mr. Sharpe appeared to grow as a writer in respect of the sophistication of his plots, the elaboration of conflicts and the differentiation of his stories as they expand in length. He testified that he saw Boyabuse as evidence of Mr. Sharpe’s development as a writer.

Conflict

[58] Professor Miller testified that conflict in writing generally takes the form of a competition or clash between characters, between characters and nature, or within a single character’s mind. He observed that conflict generates plot such that the reader wants to know how the conflict arose, how it plays out and how it is resolved. For example, Stand By America, 1953 focuses on the conflict between American boys and supposed Soviet KBG agents. He pointed out that sometimes competition takes the form of a contest or competition as in Tijuana Whip Fight in Boyabuse.

[59] As a general observation, he noted a recurrent conflict between master and slave. He was struck by the numerous variations of such conflict used by Mr. Sharpe in his writing.

[60] Professor Miller expressed the view that the use of conflict added to the literary value of Mr. Sharpe’s work.

Theme

[61] Professor Miller found an ethical theme of fortitude throughout Boyabuse. This fortitude is primarily physical, in the sense of endurance of boys who are beaten and whipped. While not purporting to pass moral judgment upon Mr. Sharpe’s writings, Professor Miller expressed the view that the theme of fortitude adds to the literary value of the stories in Boyabuse.

Setting

[62] Professor Miller testified that setting is usually the social context in which a narrative is played out. The context can be a religious setting, a family setting, an institutional setting and so on.

[63] In reference to the various settings chosen by Mr. Sharpe, Professor Miller was of the view that they added to the literary value of Mr. Sharpe’s work.

Traditions and Styles

[64] Professor Miller testified that he would place Boyabuse and Stand By America, 1953 in the Sadean tradition of transgressive literature. The word “Sadean”, he explained, came from the writings of the Marquis de Sade. He testified that the Sadean tradition is recognized by the community of literary scholars. He defined the Sadean tradition as focusing attention on transgressive sexuality. He said it represents the defiant breaking of taboos controlling sexual relations and practices established by the Holy Book, by literature, and by taboo. He said that Sadean works locate conflict primarily in the struggle between a cruel sexual aggressor and an usually placid sexual partner, with the recounting of endless variations of sexual torment.

[65] He was asked whether he agreed with the evidence of the psychiatrist Dr. Lohrasbe (a Crown witness) who described Boyabuse and Stand By America, 1953 as displaying a striking and relentless degree of violent themes. He agreed with this evidence but added that readers of works of the Sadean tradition would not be surprised to find numerous imaginatively cruel depictions of flogging, rape and sado-masochism; that is exactly what one expects from Sadean works.

[66] He observed that Mr. Sharpe’s stories rigorously conform to the conventions of the Sadean narrative and noted that Mr. Sharpe’s ethos of fortitude was his “special twist” on the Sadean tradition.

Summary

[67] Professor Miller is of the opinion that Boyabuse and Stand By America, 1953 have some literary or artistic merit.

[68] I give substantial weight to Professor Miller’s evidence.

Professor Lorraine Weir

[69] Professor Weir was called by the defence. She teaches English at the University of British Columbia. She was qualified as an expert witness to give opinion evidence on literary theory, literary criticism and the history of literary criticism.

[70] Professor Weir analysed Mr. Sharpe’s works using a method called Hermeneutics. She described Hermeneutics as a method of interpreting literary texts which traces its roots back to Aristotle. She chose to apply this approach to the issue of artistic merit because, in her view, it closely resembled the method suggested by McLachlin C.J.C. in R. v. Sharpe, supra.

[71] Professor Weir described Hermeneutics as being normative and objective in its approach. She testified that there are two fundamental aspects to the Hermeneutic analysis. The first is internal or intrinsic to the text under consideration. This involves an analysis of the literary skills present in the text. The second is external or extrinsic to the text. This aspect looks to other writings of the same author, relevant works of other authors and knowledge of the subjects dealt with in the subject text.

[72] Professor Weir was careful not to judge the morality of Mr. Sharpe’s writings. She called her approach “Classical Hermeneutics” and contrasted this with “Sacramental Hermeneutics”, a method which brings in moral considerations based upon the teachings of the Bible. In her view, Sacramental Hermeneutics is not the appropriate method to apply in the present case, in light of the direction given by the Supreme Court of Canada in R. v. Sharpe, supra.

[73] In the opinion of Professor Weir, Boyabuse and Stand By America, 1953 have literary merit.

[74] In preparation for testifying as an expert witness in this case, Professor Weir read the complete works of Mr. Sharpe, reviewed relevant l9th Century English literature and relied on her own knowledge of literature. She found context for Mr. Sharpe’s works in Boyabuse and Stand By America, 1953 in Victorian literature. In particular, she found that the Victorian phenomenon of flogging schoolboys was drawn into the subject texts. Further, she found the Victorian theme of fortitude central to Mr. Sharpe’s works.

[75] Professor Weir found considerable use of irony in Boyabuse. She made a thorough analysis of Timothy and the Terrorist, which she said reflected the use of irony on several levels. She observed that irony worked well in terms of control and gave balance to the story. She also observed that irony was the major structural device extending from Timothy and the Terrorist to other stories in Boyabuse.

[76] Professor Weir was asked whether the use of irony added to the literary value of the text, and if so why. She replied that irony contributed to the complex structure of the stories and was stylistically well suited to the accomplishment of the artistic goals of the narrator. She cited examples.

[77] As a general observation Professor Weir pointed out that Mr. Sharpe used different kinds of speech in the dialogues, ranging from colloquial language of children to mature descriptive language by adult narrators. In her view, this adds to the literary value of the stories and demonstrates the author’s control of identification of different characters.

[78] Professor Weir analyzed Boyabuse and Stand By America, 1953 in the context of other works written by Mr. Sharpe and the works of other writers. Professor Weir referred to a novel written by Mr. Sharpe entitled “Rupert Unexpurgated”. This, she said, was written in the form of a biography relating to the maturation of a boy from early childhood into adolescence. She testified that a novel of development or maturation is a difficult genre to work with. She observed that Mr. Sharpe’s use of the voice of the young child in the early part of the story captured the child’s view of the world, and as the story progressed, Mr. Sharpe continued to use age appropriate language and sentence structure. By the end of the story, the vocabulary, the sentence structure and the entire rhythm of the language shifted to reflect the maturation process.

[79] Professor Weir testified that Rupert Unexpurgated shows that Mr. Sharpe has a level of expertise in his craftsmanship and in his controlled use of different literary forms. She observed that these attributes are present in many of the Boyabuse stories and in other works of Mr. Sharpe. She also found themes of fortitude and initiation in most of Mr. Sharpe’s works.

[80] She referred to “Algernon at Eton”, another novel written by Mr. Sharpe. She testified that in this novel Mr. Sharpe endeavours to shape his literary material and draws upon the Victorian historical context described by the poet Algernon Charles Swinburne. That context included the practice of flogging in Victorian boys’ schools, as well as themes of apprenticeship and fortitude.

[81] Professor Weir testified that Mr. Sharpe’s reference to Algernon at Eton enabled her to understand the theme of fortitude and its significance in his work as a whole. She testified that Rupert Unexpurgated eloquently displayed Mr. Sharpe’s skill as a writer, and that this skill is revealed in many of the stories in Boyabuse.

[82] I was impressed with Professor Weir’s opinion evidence, albeit there were occasions where she was combative beyond what one would normally expect from an expert witness.

Professor Paul Delaney

[83] Professor Delaney was called as a witness for the Crown. He is a Professor and Chair of the Department of English at Simon Fraser University and is well-versed in literature and literary criticism.

[84] Professor Delaney expressed the opinion that Boyabuse and Stand By America, 1953 could not reasonably be viewed as art. Viewing the stories together he said that the majority deal with captivity; boys being kidnapped by people with power and then systematically tortured. This torture, he said, creates sexual excitement in the boys and in the torturers. The boys are encouraged to have sex with each other and are then raped and sexually abused by their torturers. There are generally two resolutions: either the boys escape, or the boys and their torturers become friends and continue their sexual relations. The boys are also rewarded for their tolerance of pain.

[85] Professor Delaney considered Boyabuse and Stand By America, 1953 from numerous perspectives and found no evidence of literary merit.

[86] He testified that: the usual plot of captivity and mistreatment is dealt with in the most crude and fundamental manner; Mr. Sharpe’s style is crude and almost childish in its simplicity; there are spelling and grammatical errors, ambiguities and incomplete phrasing; there is no significant variation or dimensionality; the characterization is as crude and simple as the narrative prose; the characters are given no inner dimension, emotional history or distinctive personality, but are described solely by their physical characteristics; the motivations of the characters are typically simple and implausible; he could not discern any complex emotions; he could not discern any philosophical inquiries; there is no coherent philosophy; rationalizations exist, but they are contradictory; the effect on him (Professor Delaney) is boredom and disgust; Mr. Sharpe’s only authorial purpose is to take pleasure in graphic and repetitive descriptions of pain inflicted on boys by genital mutilation, flogging and rape; he could not discern any attempt by Mr. Sharpe to attain literary quality; he could not discern any attempt by Mr. Sharpe to present his sexual interests in an artistic form; the prose is no more than the flattest possible physical descriptions; and Boyabuse and Stand By America, 1953 are pornography.

[87] To provide evidence for his assertion that Mr. Sharpe’s works are pornography, Professor Delaney referred to a definition of pornography by Nabokov, the author of Lolita. It reads:

In modern times the term “pornography” connotes mediocrity, commercialism, and certain strict rules of narration. Obscenity must be mated with banality because every kind of aesthetic enjoyment has to be replaced by simple sexual stimulation which demands the traditional word for direct action upon the patient […] Thus, in pornographic novels, action has to be limited to the copulation of clichés. Style, structure, imagery should never distract the reader from his tepid lust.

I note here that Nabokov’s definition is quite different from the definition of child pornography in the Criminal Code.

[88] Professor Delaney referred to the Institutional Standard test as a method to determine whether a work has artistic merit. This test uses public recognition and reviews by literary experts to judge whether a work has literary merit. On cross-examination, however, Professor Delaney admitted that there are tens of thousands of writers whose works are never recognized.

[89] Professor Delaney was asked whether Boyabuse and Stand By America, 1953 could be described as transgressive literature. He said that they could not because they are not literature. He described Mr. Sharpe’s style as highly conservative and even fascistic in the way he defines what it is to be male or female. He described Mr. Sharpe’s attitudes as “red neck”.

[90] Professor Delaney was asked whether there is any evidence of parody in Mr. Sharpe’s writings. In answer, he described the story Ninja Option as not so much a parody as a taking to extremes a popular kind of writing; that being the epic. He testified that Mr. Sharpe takes such writing and adds themes of torture, rape and “the usual”. Professor Delaney said he would not call that style a parody in the usual sense of creating a humorous contrast by exaggeration. He said he could not imagine Mr. Sharpe’s stories as having been written for humour.

[91] Professor Delaney was asked whether Mr. Sharpe used allegory in his work. He testified that Mr. Sharpe did not use allegory in the strict sense, and that where he may have used allegory in the broader sense, he was incompetent and contradictory.

[92] Professor Delaney expressed the view that the presence of literary devices does not mean that a work has literary merit. He pointed out that pornography may use literary devices but does so in a mechanical, unimaginative way. This is how he described the prose in Boyabuse and Stand By America, 1953.

[93] It is clear that Professor Delaney, in arriving at his opinion, took into account the immoral qualities of Mr. Sharpe’s work. In his written report, Professor Delaney said: Even where artistic merit exists, this does not mean that ethical issues automatically become irrelevant.
[…]
Society routinely decides that artistic properties should be subordinated to ethical or legal properties. For example, we do not allow speeding drivers to avoid punishment by appealing to the ’aesthetics’ of an intense, thrill-seeking experience. The danger presented to the community by high-speed driving outweighs whatever ’artistic’ pleasure attaches to speeding. Similarly, we do not allow artists to be destructive of our lives or property.

[94] On cross-examination, Professor Delaney took the position that his opinion of Mr. Sharpe’s writing was independent of moral considerations. I do not accept this evidence. Upon consideration of the whole of Professor Delaney’s evidence, I have no doubt that moral considerations played a significant role in the formulation of his opinion.

[95] Professor Delaney brought to bear considerable skill and learning in his analysis of Mr. Sharpe’s works and gave clear and forceful testimony. I have great respect for Professor Delaney. My comments with regard to his testimony are not intended to diminish that respect.

[96] After careful consideration of all the evidence and the applicable law, I have concluded that I cannot accept Professor Delaney’s opinion that Mr. Sharpe’s works have no literary merit. As noted above, his views on morality played a significant role in his evidence. In my opinion, he erred by applying what is in effect a community standards of tolerance test in assessing Mr. Sharpe’s works. This is the very test that the Supreme Court of Canada has ruled ought not be applied: R. v. Sharpe, supra, at paras. 65 and 67. Further, Professor Delaney placed weight on the Institutional Test for artistic merit. In my view, this test is ill-suited to judging the writings of the vast majority of writers whose works, like those of Mr. Sharpe, have enjoyed little or no recognition. Finally, based upon my own reading of Boyabuse and Stand By America, 1953 and my assessment of the testimony of Professor Miller and Professor Weir, I find myself in respectful disagreement with Professor Delaney. In my opinion, Boyabuse and Stand By America, 1953 have some artistic merit. I will expand upon this opinion later in these reasons for judgment.

Dr. Shaberhan Lohrasbe

[97] Dr. Lohrasbe is a forensic psychiatrist with considerable experience in the assessment and treatment of sex offenders.

[98] In the course of his work with sex offenders, Dr. Lohrasbe sees a great deal of pornography. His clients use pornography to excite themselves and to masturbate. He considers Boyabuse and Stand By America, 1953 to be pornographic. He testified that in most pornography involving violence, an element of regret or ambivalence is usually present, but in Mr. Sharpe’s writings he found none.

[99] He was asked for his view as to the attitude conveyed in Mr. Sharpe’s writings regarding violence and sex. He said that the writings were celebratory, showed little remorse and conveyed the idea that violence and sex are enjoyable.

[100] Dr. Lohrasbe admitted that he had no qualifications to express any view on the literary merit of Mr. Sharpe’s writings and said that he did not purport to do so. He also admitted that he had read very little of Mr. Sharpe’s writings other than Boyabuse and Stand By America, 1953.

The Crown’s Theory

[101] The Crown in its written submission begins by quoting Nabokov’s definition of pornography. The Crown then states its theory: that Mr. Sharpe’s stories have no artistic merit because Mr. Sharpe intended them to be pornography, not art. In the Crown’s words:
The theory of the Crown in this case is a simple one: the stories do not have artistic merit because they were never intended to be art. Their purpose and nature was always non-artistic. They were written and distributed as pornography for those who are sexually attracted to male children (paedophiles) and who enjoy an element of extreme sadism as part of their sexual arousal. They were intended to sexually arouse paedophiles with these particular preferences in order to facilitate masturbation.

[102] The Crown supports its argument quoting various passages from correspondence written by Mr. Sharpe, taken from his home computer during the search of his apartment by the police. In his correspondence Mr. Sharpe quite candidly states that some of his writings are sadomasochistic fantasies that may well arouse erotic reaction in those so inclined. His letters also speak of “erotic aesthetics” and “fortitude”.

[103] Some of the passages taken from Mr. Sharpe’s correspondence upon which the Crown relies are as follows:

Letter written in 1992:
I want to deposit with you a collection of erotic boy stories that I have written over a period of ten years. They have had extremely small circulation and are of course unpublishable for the most part. Some have heavy sadomasochistic themes.

Letter written in 1993:
I seem to be rambling on, but I’m so excited to hear from someone who shares what I still feel are my darkest fantasies. It has been very bold of me, as I’ve seen things, to write my fantasies down, for a story.

Letter - undated:
I’m working on sadomasochisticfaggotkiddieporn SMFKP farce.

Letter written in 1993:
For me the thrill is the fortitude of the boy, testing rather than crushing the spirit. Ali in the Rites at Port Dar Lan #1 expresses this idea. I doubt if I would find it erotic if a torture kept a boy well beyond his endurance, out of control - convulsions. Mindless torture is a turnoff.

Letter written in 1993:
In relation to the adult male characters of Stand by America, the men are clever, daring and sometimes witty. The have a good time sating their lusts.

[104] I do not accept the Crown’s theory. In my opinion, it attempts to draw a distinction between pornography, on the one hand, and artistic merit, on the other. As McLachlin, C.J.C. said at para. 67 of R. v. Sharpe, supra: “ […] the logic of either obscenity or art is inapposite.”

[105] In my view, the defence of artistic merit under s.163.1 of the Criminal Code does not depend upon whether the written material is considered “pornography”. The question to be answered is whether the writing has artistic merit, irrespective of whether the work is considered pornographic.

[106] In addition to the foregoing reasons, I do not accept the Crown’s theory for the reasons set out in the section below entitled The Court’s View.

The Court’s View

[107] There is no question that Boyabuse and Stand By America, 1953 describe sadomasochistic scenes of violence and sex directed at boys generally 12 years of age and younger. The scenes portrayed are, by almost any standard, morally repugnant. Mr. Sharpe’s method of portraying these scenes and the circumstances and storylines surrounding them have been closely examined by eminent literary scholars. Two have found literary merit and the other has not. As noted above, I place greater weight on the opinions of the scholars who say that there is artistic or literary merit in Mr. Sharpe’s work.

[108] I have considered all the material put in evidence, including the numerous works of Mr. Sharpe and of other writers. These include a work by the Marquis de Sade describing scenes of sexual torture of women and children, scenes which in terms of sadistic cruelty and horror go far beyond those written by Mr. Sharpe. I refer to the 447 methods of sadomasochistic torture set out in “The Lusts of the Libertines”, which forms part of de Sade’s “120 Days of Sodom”. According to all of the literary scholars who testified, the passages in de Sade’s work have artistic merit.

[109] On my reading of Boyabuse and Stand By America, 1953, I find evidence of artistic merit. Mr. Sharpe’s portrayal of people, events, scenes and ideas are reasonably well written. He uses parody and allegory, not expertly, but he does use them. His characterization is thin, but it does exist and at times is expressed with a reasonable degree of skill. His plots show some imagination and are sometimes fairly complex. In my view, Boyabuse and Stand By America, 1953 are properly termed transgressive literature. Mr. Sharpe shows skill in the literary quality of his work and the literary devices that he uses, although not to the level of most established writers.

[110] His references to works other than his own are of some substance. A review of these works provides context for the recurrent subjects in Boyabuse and Stand By America, 1953 of flogging, torture, fortitude, initiation, man-boy and boy-boy sexual relations.

[111] A reading of Mr. Sharpe’s other writings put in evidence, both prose and poetry, reveals that he is not devoid of literary skill. He writes about varied topics and, in doing so, he shows a fair depth of knowledge and ability to observe and describe people and events. His works indicate that he is a writer who seeks to express himself in a manner that has literary merit.

[112] For the foregoing reasons, I find that both Boyabuse and Stand By America, 1953 have some artistic merit.

[113] In R. v. Sharpe, supra, McLachlin, C.J.C. said, at para. 63:
Any objectively established artistic value, however small, suffices to support the defence.

[114] In my opinion, the above quoted words apply here.

[115] I conclude, therefore, that if I have erred in finding that Boyabuse and Stand By America, 1953 do not advocate or counsel the commission of sexual crimes against children, Mr. Sharpe nonetheless succeeds on the defence of artistic merit, and is therefore not guilty of Counts 1, 2, 3 and 4 in respect of Boyabuse and Stand By America, 1953.

SUMMARY

[116] There are four counts alleged against Mr. Sharpe.

[117] Counts 1 and 2 relate to a seizure of materials from Mr. Sharpe at the Canada/U.S. border on April 10, 1995.

[118] Counts 3 and 4 relate to a seizure of materials from his apartment in Vancouver on May 13, 1996.

[119] Count 1 alleges possession of child pornography for the purpose of distribution or sale. This count involves computer discs containing a text entitled Sam Paloc’s Boyabuse Flogging, Fun and Fortitude - a Collection of Kiddiekink Classics, which, for convenience, is referred to as Boyabuse.

[120] Mr. Sharpe raises two defences to Count 1. The first is that Boyabuse does not advocate or counsel the commission of sexual crimes against children. Under s. 163.1 of the Criminal Code the Crown must prove beyond a reasonable doubt that written material advocates or counsels the commission of sexual crimes against children. I find that this has not been proven. The first defence therefore succeeds.

[121] The second defence is that Boyabuse has artistic merit. The Supreme Court of Canada in R. v. Sharpe, supra, decided that any objectively established artistic value, however small, will suffice to support this defence. I find that there is some objectively established artistic value to Boyabuse. The second defence therefore succeeds.

[122] Because Mr. Sharpe succeeds on either or both of these defences, I find him not guilty of Count 1.

[123] Count 2 alleges simple possession of child pornography. This count involves the text Boyabuse and various photographs of boys in sexual poses.

[124] For the same reasons as I have stated in regard to Count 1, I find Mr. Sharpe not guilty of the Boyabuse aspect of Count 2.

[125] The photographs are another matter. Mr. Sharpe argues that he comes within an exception to the child pornography provisions of the Criminal Code enunciated by the Supreme Court of Canada in R. v. Sharpe, supra. I reject this submission. I find that the Crown has established beyond a reasonable doubt that the photographs are child pornography. I therefore find Mr. Sharpe guilty of Count 2 in respect of the photographs.

[126] Count 3 alleges possession of child pornography for the purpose of distribution or sale. The formal count refers to “books, manuscripts and stories”, but the Crown restricted the scope of this charge to one written work, that being the story Stand By America, 1953. As with Boyabuse in Counts 1 and 2, I find that the Crown has not proven that Stand By America, 1953 advocates or counsels the commission of sexual crimes against children. Also, I find that Stand By America, 1953 has some artistic merit. Mr. Sharpe is therefore not guilty of Count 3.

[127] Count 4 is simple possession of child pornography. There are two aspects to this charge. The first is possession of Stand By America, 1953. The second is possession of a collection of about 400 photographs.

[128] For the same reasons as those articulated for Count 3, I find Mr. Sharpe not guilty of the Stand By America, 1953 aspect of Count 4.

[129] In respect of the collection of photographs, there is no doubt that the photographs are child pornography. I therefore find Mr. Sharpe guilty of Count 4 in respect of the photographs.

 

“D.W. Shaw, J.”

The Honourable Mr. Justice D.W. Shaw

 

  

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