'Group L': 'R. v. Sharpe', 2001 SCC 2
Introduction to 'R v Sharpe'
Sharpe was charged with possession of child pornography under s. 163.1(4) of the Criminal Code. Sharpe challenged the constitutionality of s. 163.1(4) by declaring it a violation of his freedom of expression, guaranteed in s. 2(b) of the Canadian Charter of Rights and Freedoms. In the Criminal Code, child pornography is defined as "a photographic, film, video or other visual representation...
(i) 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
(ii) 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.”
In R. v. Sharpe: The fundamental question is whether s. 163.1(4) of the Criminal Code is overbroad and criminalizes possession of an unjustifiable range of material.
McLachlin CJ, writing for the majority, held that the provision in the Code violated an individual’s freedom of expression but was justified under s. 1. The Court concluded that the government objective of protecting children from exploitation was proportional to the violation of freedom of expression. The Court, however, found the provisions too broad. It included two types of material that should not constitute child pornography for the purposes of the provision:
(1) any written material where visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use; and
(2) 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.
These types of materials do not pose a direct or potential harm to children because the written or visual representations were created and possessed by the accused for exclusive personal use.
The dissent, lead by L’Heureux-Dubé also held that the provision in the Code violated freedom of expression but was justified under s. 1 because the government objective of protecting children from exploitation was proportional to the violation of freedom of expression. The dissent, however, did not find the provisions to be overly broad. In their view, the prohibition of the possession of child pornography, even as personal expression and for strictly personal use, is fully justified under s. 1 of the Charter. The dissent contends that expression that degrades or dehumanizes children is harmful in and of itself. This is because all members of society suffer when harmful attitudes are reinforced. A pornographic representation that may be disseminated creates a heightened risk of attitudinal harm.
- 1 Introduction to 'R v Sharpe'
- 2 Legal Realism
- 3 Natural Law
- 4 The Positivists
- 5 Separation Thesis
- 6 Morality of Law
- 7 Ronald Dworkin: Law, Principles and Rights
- 8 Liberty/Paternalism
- 9 Law and Economics
- 10 Feminist Jurisprudence
- 11 Critical Legal Studies and Critical Race Theory
- 12 Conclusion
In the the eyes of a legal realist, "law" is whatever a judge says it is. There is a candid recognition of the creative role in adjudication that judges play. The judges use their power to make decisions in the common interest. This is very much the judge's personal perspective of what the common interest it. According to realist Jerome Frank, this perspective is informed by relevant factors such as facts, principles or precedent, but can also be persuaded by things as legally irrelevant as a party's dress or the judges' weekend plans. This perspective on common interest is far removed from the concepts of 'common interest' or 'common good' that will be discussed in the theories of law and economics and natural law respectively.
The realist line of thinking makes it easier to understand how judges can decide similar cases differently. This is evident in R v Sharpe, where the judges disagree with each other on how the law applies in the exact same case. Legal realists attribute the presence of a dissenting opinion to judges' divergent personal characteristics, perceptions of the facts, or other differences. This is possible because the theory contends that the law is thought not born out of pure rationality or higher power; it changes with the social circumstances and the identity of the judiciary.
Due to competing views embodied in the law, the correct application of the law is not always clear. This is evident in R v Sharpe where Charter rights conflict with provisions of the Criminal Code. These cases are what the positivists, discussed below, may refer to as 'hard cases', or cases in the 'penumbra'. As will be shown, in these 'hard cases', the legal realist sees the legal system operating in a very unique way from what other legal theorists would contend. For instance, while the naturalist relies on the principles of morality, and the positivist applies the law based on the principles underlying the legal system as a whole, the true realist would assert that the judge merely uses these concepts to justify an outcome they have already reached. This can be illustrated by analyzing the case of R v Sharpe through the realist lens.
The decision in R. v. Sharpe hinges on the interpretation of written laws and precedent decisions. Legal realists would contend that both McLachlin and L'Heureux-Dubé had an initial "judicial hunch" about what the outcome should be, and decided the case accordingly. A proto-realist, like Oliver Wendell Holmes, Sr., would say that in reaching this "hunch" the judged weighed considerations of social advantage and good public policy. Ultimately, however, their decision came down to personal preference. Once each judge reached their personal decision, they contrived their s. 1 Charter analysis to justify and rationalize it.
S. 1 of the Charter affords judge considerable discretion. At each stage, it is open for a judge to conclude whether the legislation is valid based on their personal characteristics and personal perception of the facts and parties. Child pornography is a very sensitive issue and can provoke spirited objection. Our group saw the dissenting opinion in
R v Sharpe as potentially a great example of the legal realist perspective.
The idea of child pornography is bound to foster very intense and visceral feelings. Judges may not, intentionally or unintentionally, separate their personal feelings from their judgment. To the dissenting Judges, the existence of child pornography in any form, even absent of direct harm to children, is completely unacceptable. For legal realists, when the Judges heard the suggestion that the prohibition of pornography is a violation of the freedom of expression, they immediately decided that this violation was justified. Thus, they had to articulate the Oakes test to reflect this initial decision.
From the view of the majority Judges, freedom of expression was likely an issue that provoked a passionate defence that cuts to the heart of the Charter. Many judges may be more liberal in their approach to the rights conferred by the Charter. They would predictably extend Charter protections to individuals as far as they see appropriate. For the majority Judges, the legal realist would say that when the two exceptions were presented to them, they had an initial reaction that sympathized and agreed with Sharpe's position. These Judges then manipulated the Oakes test to uphold the child pornography prohibition as a whole, but conceded to it being overly broad. Their "judicial hunch" to protect freedom of expression led them to accept Sharpe's exceptions being unjustifiably violated.
Cases that involve s. 1 of the Charter and the Oakes test naturally lend themselves to a legal realist commentary on the judicial process. The legal realists contends that s. 1 gives each judge the complete freedom to come to a conclusion based solely on personal bias and perspective; it can be manipulated to justify nearly anything.
Traditional natural law theory regards morality and natural law as the same entity. Morality is law and law is morality. According to natural law theorists, a true law is obeyed for reasons of justice, fairness, and morality. This is contradicted by moral theorists who argue that laws are obeyed because they are the moral standard independent of and prior to the law. Natural law theory, however, indicates that true laws are derived from a higher, non-human source.
Dynamic societies, such as Canada, have a difficult time identifying with natural law. Canadians do not accept natural law easily because they see different things based on diverse beliefs and the individualistic contexts in which they live. In response, naturalists argue that natural law is where we find the micro rules on how we are supposed to live our lives. These micro rules never change. In R. v. Sharpe, naturalists would argue that protection of vulnerable children is a micro rule that never changes. Pornography of children is mala in se – taking sexually explicit pictures of children is wrong independently of, and prior to, being made illegal.
St. Thomas Aquinas believed that all humans struggle towards the common good. According to Aquinas, laws set out the reasoned steps to assist humans in reaching the common good. Obedience to law develops in humans the habit of obedience and in turn propels humans to strive for the common good. Moreover, laws keep humans away from vices. Both the majority and minority in R. v. Sharpe would argue that restricting child pornography keeps pedophiles and potential pedophiles away from their harmful and destructive desires.
St Thomas Aquinas' understanding and interpretation of law is illustrated in the court’s decision and reasoning in R. v. Sharpe: s. 163.1 was enacted to protect children, one of the most vulnerable groups in society. It is based on the clear evidence of direct harm caused by child pornography, as well as Parliament’s reasoned apprehension that child pornography also causes attitudinal harm.” Attitudinal is defined as a state of mind or feeling. Since the Court did not define attitudinal harm, our group inferred that the court’s decision to prohibit child pornography is not only to protect children, but also to reinforce the illegality of pedophiles’ sexually deviant behavior. Aquinas would argue that s. 163.1 not only protects children from harm (the common good) but also keeps humans away from their vices. “The possession of child pornography contributes to the cognitive distortions of pedophiles, reinforcing their erroneous belief that sexual activity with children is acceptable. Child pornography fuels pedophiles’ fantasies, which constitute the motivating force behind their sexually deviant behavior.” Hence, the enactment of s. 163.1 would inhibit this force and reinforce to pedophiles their pernicious desires. Aquinas would argue that this law is valid in that it propels some humans away from their vices.
According to Aquinas in order for a law to be valid four elements must be satisfied:
1.) The law must be directed to the common good
The law must be directed to the good of the community as opposed to the good of a specific individual. R. v. Sharpe states, “The law intrudes into the private sphere because doing so is necessary to achieve its salutary objectives... the provision’s beneficial effects in protecting the privacy interest of children are proportional to the detrimental effects on the privacy of those who possess child pornography.” In other words, the common good of protecting children far outweighs the privacy interests of individuals. It is in the interest of society to infringe on a few individuals to protect children.
2.) The law must follow practical reason
According to Aquinas, law illustrates the steps humans must take to reach the common good. Laws are practical reason directed towards the common good. The court highlights this practical reason, s. 163.1 (4) helps to prevent the harm to children which results from the production of child pornography; deters the use of child pornography in the grooming of children; curbs the collection of child pornography by pedophiles; and helps to ensure that an effective law scheme can be implemented. In sum, the legislation benefits society as a whole as it sends a clear message that deters the development of antisocial attitudes.” Aquinas would likely applaud the reason taken to acquire this law. Legal realists would halt Aquinas’s applause and note that this reason was flawed because it was truly directed by a "judicial hunch."
3.) The law must be made by a valid lawmaker (ruler within community, who holds this position by reason of the natural order)
s. 163.1(4) is found in the Criminal Code of Canada. Aquinas would hold that the Legislature is a valid lawmaker who is naturally ordered to establish law. It is important to note that Aquinas did not believe the Legislature is a valid law maker due to the democracy. Rather, he believed some people are naturally able to rule and others are naturally ruled.
4.) Must be promulgated
S. 163.1(4) is found in the Criminal Code of Canada. The Criminal Code consists of laws written down and is easily accessible to all Canadians. Aquinas would argue that the Criminal Code compels obedience because Canadians are aware of the laws and expected to know them.
According to Aquinas, legislation is preferred to judge made law. Legislators have greater authority and are likely to possess greater wisdom. In written law, there are general principles that are applicable to everyone. The judge takes these general principles and then applies them to specific facts. Aquinas feared that judges may lose objectivity due to human interaction. Based on Aquinas’ understanding of the judge's role in making law, Aquinas would side with the dissenting judgment in R. v. Sharpe. The dissenting view holds that no exceptions should be read into s. 163. 1 as it is upheld under s. 1 of the Charter. Aquinas would disregard the majorities ruling because the court holds that the “[A]appropriate remedy in this case is to read into the law an exclusion of the two problematic applications of s. 163.1.” Aquinas would not approve of the Judges' reading into the law because it is not what Parliament specifically wrote and Parliament possesses the true wisdom to determine the content of law. Moreover, Aquinas would view these exceptions as immoral and therefore unenforceable. These exceptions do not go with the letter of law. Our group concluded that R. v. Sharpe does not merit a just response to exceptionsm by invoking the spirit of the law argument. Obedience to the letter of the law must give way to the spirit of the law which aims always at the common good. We believe the common good is the protection of children. The spirit and letter of the law (not reading in these exceptions) are normatively consistent with this overall objective. In this particular case, the spirit of the law appeared to be on pare with the letter of the law.
Positivism is the rejection of a morality based legal structure. It contends that law is a man made thing that contains no moral compass of what is right and wrong. This makes positivism the antithesis of Thomas Aquinas’s natural law theory. Natural law maintains morality as laws defining feature. For positivists, moral norms are merely incidental. The center of law is based around the command or rule issued by a sovereign.
John Austin states that a true law is “a command, issued by superiors to subordinates and backed by sanctions.” The command must be made by the sovereign and obeyed. It does not have to be coherent as long as it is simply a command. This makes Austin’s positivism distinct from other legal philosophies. Whereas most other philosophies justify the law with some form of the betterment of society, Austin’s justification is solely for control. Dworkin argues fairness, law and economics argues efficiency, and even modern positivists, like Bentham, argue utilitarianism or justification. In contrast Austin contends that none of these matter at all - the law is simply a command issued by the sovereign.
The positivists command attitude means that Austin’s philosophy is extremely legislation centric. Judges exist primarily to carry out the sovereign’s command. When a case presents itself, and judges use the common law or their own discretion, they are not using true law. The common law is morality and not true law issued by the sovereign.
In R v. Sharpe the court considers the constitutionality of s.163.1(4). For Austin, s.163.1(4) would be considered a true law if:
(a) The law commands people not to possess any child pornography,
(b) The law is created by Canada’s sovereign - Parliament,
(c) The law is directed at subordinates - Canada’s people, and
(d) The law contains a sanction - the liability of imprisonment of 6 months to 5 years.
Accordingly, the court would be expected to apply the law and condemn Sharpe if he is found guilty of possessing child pornography. No consideration of the laws morality or fairness would be required.
In R v. Sharpe, the laws fairness is questioned through the use of the Charter. The use of the Charter by Sharpe to challenge the law in our groups view would be rejected by Austin. While the Charter was created by Parliament and forms a command, it is merely a document that creates rights and should not count as true law. It applies no sanctions and it leaves too much discretion to the judge in how true law should apply. For, Austin the judge should not have this discretion at all. It is the sovereign that determines commands, not the judiciary. This is in direct contrast to realists who see the discretion of judges as key.
McLachlin’s majority decision illustrates a disruption of the sovereign's command. By using s.1 the Court makes an interpretation of Parliament’s intention and ensures that the means chosen by Parliament are rationally connected to the laws objective. This use of s.1 is a direct questioning of the “true law” issued by Parliament. Hence, the majority reads in two exceptions to s.163.1(4), thereby circumventing Parliament. These judge made exceptions to s.163.1(4) are not true law according to Austin. Parliament should be able to overrule judge made law, but the exact opposite occurred in the case. The majority uses the power of s.1 to overrule a portion of Parliament's true law.
While s.163.1(4), as part of the Criminal Code, forms an acceptable prohibition for Austin, he would undoubtedly reject any use of the Charter specifically because it undermines the very core of his positivist views.
HLA Hart takes us into the core of legal positivism when we look at his separation thesis. This theory looks at the separation of the law and morality. According to Hart, these are different and distinct concepts. While natural law theorists would say that the law lies within this moral content, Hart says that this is not necessarily so. It is possible, and rather likely, that the law and morality will run parallel to one another. There is, however, no presumption that the law embodies morality. According to Hart, if these two ideas do run contrary to each other we have a decision to make - do we follow morality or the law? This decision becomes more difficult in the event that they become starkly contrasted.
Building on Austin’s crude positivism, Hart indicates that the legal system is based on a rule governed practice. In order to be a law it needs to have a special characteristic. This special characteristic is an “ought” claim - one should want to follow a law because “one ought to.” Legal rules are unique because they are backed by a legal system and function through the rule of recognition. This recognition factor is embedded deeply in a psychological way. According to Hart, we all follow laws because we universally recognize the laws. This idea contrasts with natural law theorists, who believe that we follow the law because we are morally compelled to do so.
Judges have a very special role in Hart’s view. Judges will take the peculiarities of cases into account because legislation and the common law are expressed in general terms. They need to apply generally because it would not be practical to have rules apply to each of us individually. Thus, there is a “settled core of meaning” where most factual situations will fit. In these situations, the law and the facts correlate and are well settled. A factual situation, that is not entirely covered by this core, is a case that falls in the penumbra. The penumbra represents the ‘hard cases’ where the judge's special role becomes apparent. They need to decide where the particular situation lies and how the law applies to it. This idea is highly contested between Fuller and Hart, as we will later see.
At first glance, the case before the court in R. v. Sharpe looks like it sits well within the settled core of meaning. There is a statute prohibiting the production and possession of child pornography and the accused has been found guilty according to behaviour falling within that statute. However, when breaking down and analyzing the statute it begins to look as if it may fall in the penumbra.
Hart would agree with the approach taken by the majority in analyzing whether or not the statute was overly broad in capturing behaviour that would unjustly infringe the rights held in s. 2(b) of the Charter. The Charter, in the eyes of Hart, would be seen as sweeping up the terms of the rule governed practice and making them explicit and codified. Obviously, a decision that embodies these underlying terms of the rule governed practice would be considered the right decision in Hart’s view. Hart would see that the weighing of Charter rights in the Oakes test as the majority using its discretion to draw on terms of the rule governed practice. On the one hand, there is an infringement on the accused’s autonomy; prohibiting being in possession of certain proscribed material. On the other hand, we have potentially dangerous material that, on its face, inherently puts a vulnerable group at risk of harm. A natural law theorist may interject at this point, claiming that child pornography is inherently immoral and that this should be the end of the discussion - the law is moral. Hart would disagree. While child pornography may very well be inherently immoral, that doesn’t mean to say that the law must necessarily follow suit. Judges will analyze the situation in terms of the rule governed practice.
It is likely that Hart would look favorably on the objectivity of the majority. Throughout the Oakes test, even while weighing morally objectionable content, the law is analyzed without moral tinge to it. Child pornography in the context of most provisions of the section is something that people “ought not” to have, and certainly “ought not” to produce. In both senses, it causes inherent, actual, or potential harm towards children. Our group noticed the issue falls more into the penumbra at the third stage of the proportionality test. While the law clearly defines materials considered to be child pornography, the issue is whether or not certain portions of that law are constitutional; do they follow the terms of the rule-governed practice? Should written materials or visual representations created by an accused, along with visual recordings that do not depict unlawful sexual activity (both strictly for personal use) fall within this prohibition? This is where it becomes unclear and falls within the penumbra. In this situation, Hart indicates that the judges would draw upon the terms of the rule-governed practice. They would weigh the interests of both sides, and come to a just conclusion as to what to do about these seemingly problematic areas of the law. Hart would applaud the majority because this is exactly what they do.
The applications of these two restrictions impose regulations on expression that “borders on thought.” “The cost of prohibiting such materials to the right of free expression outweighs any tenuous benefit it might confer in preventing harm to children”. Thus, while this material may still in itself be immoral, the law cannot be considered proportionate to its restrictive effects. The law infringes on the freedom of society too gravely. Hence, it must be read down to include exceptions. Without reading exceptions into the law, the law would go against the terms of the rule-governed practice articulated by the Charter. In the absence of harm to others, people ought to be able to possess a degree of morally objectionable material.
In terms of the dissenting view, Hart would agree with their reasoning, but may disagree with its conclusion. It would all depend on what balance he saw fit in terms of weighing different underlying themes of the terms of the rule governed practice. On one hand, prohibiting all forms of child pornography listed in s. 163.1 places a limit on an inherent freedom guaranteed to every citizen by the Charter. On the other hand, this right to expression in the form of child pornography is in many ways inherently dangerous and encroaches on the rights of children in society to be safe and free from oppression. In our group's opinion, Hart would likely see that the dissenting view went too far in favor of limiting the rights of people to possess material that would not be likely to endanger other people. As the majority view found, this was inconsistent with the values that underlie the Charter. Hart would contend the minority as being inconsistent with the terms of the rule governed practice.
Morality of Law
Lon L. Fuller rejects Hart's notion of the core and therefore the penumbra. He offers his own theory of how judges develop the law. According to Fuller, judges are interpreting the law to match it to the wider purposes of law and legal systems. There are three main planks in Fuller’s argument:
1. Social acceptance of legal rules
Fuller argues that any such recognition of law is ultimately grounded in morality. Society recognizes that these rules must have morality in common with the community. In R. v. Sharpe, there is social acceptance that understands the difference between innocent pictures of children in a bathtub and images of the children posed in sexually explicit positions. These common socially acceptable rules are established in the external morality of society – individuals know what is morally acceptable and unacceptable.
Before the decision in R. v. Sharpe, Fuller would argue that society knew what was an acceptable image of a child and unacceptable image of a child. They did not need the lawmakers to make this “recognition.” This recognition was rooted in society’s moral understand of what is acceptable and what is unacceptable.
2. Law itself has an inner morality
Fuller recognized that there is something intrinsic to the nature of the legal system. The purpose of law is to produce order. To be effective at producing order it must conform to internal requirements of laws inner morality. The law must be coherent, rational, consistent, known, and capable of explanation. Fuller would applaud the Court in R. v. Sharpe for its recognition of the need to be consistent with the Charter. Moreover, the court recognized the delicate balance that must be achieved between individual expressional rights and the good of the society. The Court analyzed whether s. 163.1(4) is overbroad and took a balanced approach in deciphering what the law is attempting to achieve. This balancing upholds the obligation by the courts to interpret law as being consistent with the fundamental characteristics of laws inner morality embodied in the Charter.
3. Obligation to obey the law
Fuller notes that laws are moral because we have an obligation to follow them. This point weakens the positivist position because they cannot adequately explain the dilemma between the duty to obey the law and the moral duty not to obey immoral laws. Fuller is able to answer the Positivist dilemma by indicating that we have an obligation to obey the law because it is moral. In R. v. Sharpe, the dissenting view notes, “The law intrudes into the private sphere because doing so is necessary to achieve its salutary objectives.” This statement infers that the law is overbearing and interfering. We follow the law, however, because it is constructive and beneficial to society. It is ultimately a moral law.
When there are competing purposes, Fuller notes that the Court must balance them. The Court may look outside the framework of the law to find the answer. Moralists believe the law requires the input of all players in the legal system and is not simply a command issued and backed by the sovereign. In R. v. Sharpe, the court reads into s. 163.1(4) instead of simply striking down the statute. By inferring that these two exceptions are implied into the statute, the court is working outside the framework of the law to find the correct answer. The courts take the input of all the players in the legal system, even the accused, when deciphering the law.
Ronald Dworkin: Law, Principles and Rights
Dworkin's legal philosophy of law as a system of rights presents the idea that the law is made up of rules, principles, and policies. His theory agrees with the legal positivist that rules exist as written rules and that they are binding on citizens and judges, but adamantly rejects the positivist idea that these rule are the law. Dworkin sees beyond written rules and contends that the law contains not only rules, but principles. These general principles of justice and fairness inform the legal process in an equally important way.
Dworkin is of the view that in every case there is a discernible correct judgment according to the law. In a case where the written rules do not easily cover factual situations, judges rely on principles to inform their judgment. According to Dworkin, these principles are part of the law and, as such, are binding.
Interestingly, positivists would likely agree with Dworkin that there is a discernible correct judgment according to the law. They would also accept that judges would rely on principles when the written rules cannot apply to the factual situation. But, as discussed, Dworkin's idea that these principles were a part of the law is in contrast with the positivist view. For positivists, like Austin, only the sovereign could create law and so here they would part with Dworkin.
R v Sharpe is an interesting case when considering these principles because Sharpe is contesting that he should not be found guilty under a clear rule set out in s. 163.1(4) of the Criminal Code. We usually think of written rules as "all or nothing" requirements. Where there is a clear breach of the rules, their will be specific consequences. Dworkin brings up the idea that there may be counter-instances, where the rule does not compel the outcome. This is the case for Sharpe. He is clearly in contravention of s. 163.1(4) of the Criminal Code, but this rule is in contravention of s. 2(b) of the Charter. This leads the Judges to rely on the underlying principles to balance these rules under s. 1 of the Charter. In this situation, the rules do not decisively decide the issue at hand. Dworkin, however, contends that there is always a right answer in the law for each case. That answer is provided by the judicial application of principles.
The natural law theorists and moralists would reject Dworkin's description of principles and contend that it is merely a disguise for morality. Hart would would agree more with Dworkin in that the terms of the rule govern practice , like his principles, would guide the judge to the appropriate answer.
Dworkin's "principles" are based on the fundamental ideas of justice and fairness. These principles must be able to be drawn out by a judge in a certain context as to inform him/her of the rights and duties that are relevant to the case. In R v Sharpe we have a clear dilemma in that both s. 163.1(4) of the Criminal Code and s. 2(b) of the Charter have valid objectives and are supported by important principles. The judging process in this case entails weighing relevant principles that are pointing in opposite directions. As stated, there is a correct judgment in this situation. The role of the judge is crucial in deciding which rules apply and striking a balance between the differing principles.
The two ideals at odds in R v Sharpe are the protection of freedom of expression and the protection of children from the risk of harm. Both the majority and dissenting judgments go through a similar process to strike a balance between the underlying principles involved. In the discussion regarding freedom of expression, both judgements reject the line of reasoning that some rights are "so absolute that limits on [them] can never be justified." The argument is based on the idea that violation of the rights cannot be justified as a matter of principle and is not subject to a s. 1 analysis at all. The court finds the effects of this idea to be undesirable and unnecessary. They employ a Dworkian perspective in this conclusion by acknowledging that the written legal rules, while binding, are subject to the general principles of justice and fairness embodied in s. 1 of the Charter.
The reason the judgments in R v Sharpe come to different final conclusions is based on their characterization of the potential harm of different forms of child pornography. The majority is concerned with a more direct harm that may be perpetrated on minors. They employ the principles of justice and fairness to say that if the direct harm is not perpetuated by the proposed exceptions, then it is not fair and just to restrict a person from enjoying the freedom of that expression. In the balancing process, they determine that it would not be fair to restrict Sharpe from exercising his right of expression if there is no discernible harm to speak of.
The dissent on the other hand characterizes the harm or child pornography as degrading and dehumanizing of children in and of itself. Their contention that all members of society suffer when harmful attitudes are reinforced. This leads them to consider the underlying principles of law as needed to protect society. They use the principle of fairness to assert that the value of Sharpe's expression is low, and it would not be fair to potentially subject others to harm merely to protect his expression.
The principles underlying the law are at odds here, and the Judges reach different decisions because of their characterization of would be fair and just at the balancing stage of s.1.
John Stuart Mill raises the idea that the law should only interfere with an individual’s liberty to prevent serious harm to other people. He rejects the idea of paternalism; that the law should be able to restrict a person so that they cannot harm themselves. A person, according to Mill, knows best what is for his or her own good and they should be free to carry out their actions even though society may think that they are immoral or perverse.
Mill’s idea raises an interesting comparison with R v. Sharpe. McLachlin uses s.1 to analyze s.163.1(4). She determines that the point of the provision was to prevent harm to children. She then examines the ways in which the provision achieves this purpose. McLachlin excludes parts of the provision that infringed on Sharpe’s liberty and did not meet the overarching purpose of the provision.
Mill would likely see the majority’s decision to carve out written materials or visual representations of child pornography as a just decision. If an individual wished to write or draw depictions of child porn then society would almost surely view this as perverse. But that, in and of itself, is not sufficient to restrict a person’s liberty in Mill’s eyes. The direct harm of children is the only thing that could justify a restriction of a person’s s. 2(b) rights. Neither drawing nor writing child pornography meets this requirement and McLachlin's decision reflects this.
The dissent is an excellent example of the paternalism that Mill rejects. The dissent seeks to limit all forms of child pornography including creations that do not directly harm children. The purpose of this is to protect society by protecting the individual. While the outcome of paternalism is similar to that of legal moralism the reasoning is distinct.
Paternalism is not concerned with morality (like Thomas Aquinas) but rather that society is able to best function (like economic law theory). Through the restriction of all child pornography, paternalism seeks to protect harm to third parties. The dissent agrees and states the inclusion of written material that advocates and counsels the commission of offences against children is by its very nature harmful. “Evidence suggests that the cognitive distortions of pedophiles are reinforced by such material and that written pornography fuels the sexual fantasies of pedophiles and could incite them to offend.” This is paternalism at its core.
While Mill would agree with the majority and reject the dissent, it is possible that he may argue for even further exceptions. McLachlin suggests that many of s.163.1(4) provisions are suitable because they reduce the market for child pornography and the abuse of children it often involves. Mill may see this as an unnecessary goal. The direct harm of children in the creation of child pornography would be justification to infringe on a person’s liberty, but the possession of it may not be.
For Mill, a person who uses drugs is not a serious threat to others. The act of dealing drugs may be, and the effects it causes may be, but the mother doing heroin is not someone whose liberty should be infringed. By doing heroin, the mother is only directly injuring herself and that is all that matters. Child pornography could be said to be the same. The creation of child pornography harms children but Mill could argue that watching it does not. It is morally repulsive, but does not directly hurt anyone else and therefore can be legal.
Mill would most likely agree with McLachlin’s judgment. However, this case is an excellent example of how Mill’s theory in practice, may not concede with his desired outcome.
Law and Economics
The Law and Economics perspective describes laws as the legal rules that work towards the most efficient outcome. A law is good if it maximizes the overall position of the parties involved and is therefore an efficient law. The idea of efficiency, as it is used from this perspective, has to do with maximizing wealth. Wealth in this sense takes on a different meaning than it does colloquially. It extends past the idea of money or assets to include social wealth. Social wealth includes all the “measurable satisfactions” or things that people consider to be valuable, worthwhile, and satisfying. Wealth is spread among participants in whatever transaction they partake in. If this transaction results in an overall maximization of wealth, it is an efficient transaction. Efficient laws maximize social wealth and therefore are good laws.
The law and economics perspective hinges on the assumption that everyone is a rational human. As rational humans, we behave in ways that serves our own best interest at heart. This idea is very similar to Mill’s idea in that we know what is best for each of us. Moreover, according to law and economics, humans will make decisions that maximize their own social wealth. This viewpoint goes so far as to label the rational human party to all transactions as the “rational man.” Rational man, left to his own devices, will always act in his best interest. The law will be conducive to this process running smoothly. From the economic and law perspective, it is the law that deals with interruptions that would interfere in the maximization of wealth. This is starkly contrasted with the feminist perspective, which holds that the law is not conducive to dealing with problems. Rather, the law causes problems - it propels patriarchy by operating as the “site and cloak of force.”
Also, associated with the idea of efficiency, is the idea of pareto-superiority, or a state of affairs that is better because at least one person is better off. It is possible to get to this state when at least one person in a transaction is better off than they were before. This increased state of wealth must offset any potential loss from another party in the transaction. Basically, if the totality is better off, we have moved into a pareto-superior state. This continues until a state of pareto-optimality is reached. Pareto-optimality is ultimately achieved when the series of transactions is at a point where no further state of superiority can occur; the most efficient outcome possible. From a global perspective, we are concerned with the most efficient outcome.
A problem for this theory is that a loss from a transaction may land outside the parties that are privy to that transaction. This is called an externality. To assess whether the transaction is actually efficient, considering losses could fall outside the transaction, the theory employs the Kaldor-Hicks Test. This test suggests that even if there are losses external to third parties, as long as the benefits derived from the transaction are great enough to compensate for the externality, the transaction is still efficient. If the positives still outweigh the negatives, the rational man will continue to participate in this transaction. The law comes into play when it mandates the compensation of parties with the burden of externalities. If the law mandates compensation, that would leave the party benefiting with an overall increase in wealth, this behaviour will continue. If the compensation is greater than the benefit derived, the behaviour will cease. The behavior would cease because it would no longer be rational to take on a loss.
From the law and economics perspective, Sharpe’s actions would not be seen as being efficient. Due to a lack of efficiency, the law should impose a penalty creating a sufficient loss to make parties in that transaction cease or change their behavior. Rational man will not take part in a transaction where he will incur a loss overall. Since people are rational beings, if the loss imposed by the law outweighs the possible gains, people will no longer participate in that transaction. In other words, the transactions involving child pornography have no pareto-superior states. This is due to the negative externalities which outweigh the benefits enjoyed by a small number of people.
The transaction in this case, would be that of Sharpe, as well as others in society in acquiring, possessing, and possibly distributing child pornography. The law and economics theory would echo the sentiments of the dissent in large part, as well as the majority. Both the majority and dissent make repeated reference to the inherent and practical harm that is the ultimate byproduct of child pornography. The negative outcomes associated with child pornography weigh down the possibility of an efficient transaction. These harms stemming from child pornography, to children and the rest of society, are externalities of the transaction taking place between those who produce child pornography and those who possess it. While on a micro-scale both the producer and consumer are maximizing their wealth, there is a tremendous externality or cost imposed on the rest of society. An efficient law would place a cost so great on Sharpe that it would outweigh the particular positive outcome Sharpe would obtain from possessing pornography.
A law and economics theorist would likely agree more with the dissent's decision in this case. Looking at the transaction as a whole, it is very apparent that the externalities of this transaction place a burden on the rest of society. This burden is heavier than the positive effects people receive from child pornography. From a global perspective, the action of a very small minority (those who produce and possess child pornography) is creating a burden of harm on the rest of society. This stems both from the possibility that children will be abused in the making of child pornography and the inherent harm that it imposes on members of society. As well, the court notes that child pornography fuels fantasies of those who are likely to offend children, contributing to the externality.
In analyzing the majority view, a law and economics theorist would agree with the means used to balance out the positives and negatives in the Oakes test. However, this theorist would disagree with the ends achieved. The positives that the court weighs in carving the exceptions to the provision are those associated with freedom of speech and validity of harm in simple possession of materials without depiction of actual children in them. On a societal scale, these are small positives that are directed at only a fraction of the population. The freedom of expression being weighed here, in specific relation to child pornography, is one only a fraction of the population benefits from. Whereas the harm the court speaks about is directed towards everyone. This externality is of a magnitude and scope that cannot be justified - it is inefficient. A just law from the economic perspective should make the loss incurred by creating or possessing child pornography unappealing. Thus, the law would direct rational man to change his behaviour accordingly.
Feminist theories of law are similar to realism in that they reject a universalist way of seeing the world. The law is not based around a singular person or idea, but rather multitudes of unique people and ideas. These unique people are all different and bring with them their own experiences and perspectives. While realism focuses on the role that judges play and how their experiences influence their judgements, Feminism focuses on the people judged and how women as a group have traditionally been left outside the power structure of the law.
Catharine Mackinnon’s theory of “law as male power” engenders this very thought. She states that liberal democratic law is dominated by the male point of view. This male point of view is concealed behind liberal democratic values. These values are articulated as good and normal but in reality they simply represent the patriarchy and protect male interests. The interests of others (mainly women) are ignored because they are not represented in the norm recognized in law.
This is a direct critique of Dworkin’s legal human template which defines all people as neutral rights bearers. Mackinnon would argue that the template is a paradox because it professes to include all people but actually cannot because of the specific principles it’s based on. Similar to critical legal studies, the legal human does not represent everyone but only represents the powerful leading class. It is a legal fiction that conceals the influence of the patriarchy on the law.
MacKinnon would object to the majority’s decision in R v Sharpe for this very reason. McLachlin’s creation of exceptions to s.163.1 relies on the right to free expression. This right is an individual right based on Dworkin’s neutral rights bearer. It is recognized and upheld in our liberal society as good and just, but is actually just a tool to maintain male power. The evidence for Mackinnon is the creation of allowable forms of child pornography. Many child pornographers are male and the ability to have visual or written representations of child pornography benefits mostly males.
In contrast children are harmed by these exceptions. Feminine values such as family, nurturing, or children’s rights are sacrificed for the purposes of the legal individual. While s. 2(b) of the Charter is championed as the good natural order, our group found it disturbing here. This case demonstrates the use of the law to trump female values. At first glance, we were unable to see this patriarchal stance at play. From the feminist perspective, however, this position becomes blatantly clear.
Law and economics theorists would likely agree. While they have little interest in the patriarchal control of society they do believe in efficient law. They would join Mackinnon in stating that overtly male centric views can harm society when they are inefficient. In cases such as this, the complete abolition of child pornography would lead to greater results. Thus, more efficiency in the law, than creating exceptions for disturbed individuals. An approach that took into account the most efficient values would be a better legal situation.
The dissent in R v Sharpe may also be criticized by McKinnon. While L’Heureux-Dube, Gonthier and Bastarache all based their analysis on whether s. 2(b) should limit s. 163.1, their consideration of s.2(b) as an individual right is still working within the confines of the male view. The outcome would have pleased McKinnon but the process to get there would not. The Charter needs to establish rights based upon female values and these values need to form a part of society’s jurisprudence. Only then would McKinnon be satisfied and assured that R v. Sharpe would be resolved effectively.
Critical Legal Studies and Critical Race Theory
Critical legal studies is not a theory, but rather a literature produced by a network of people. These people view themselves as activists working in the law school setting. They hold that law is rooted in political structures as opposed to the traditional notions of law functioning within reason or logic. These political structures are both formal and informal. By identifying these political structures, critical legalists come to see how perspectives of the dominant players in society define and form the “reasoning” or “logic” behind the law. Critical legal studies offers a new way of looking at the law. They reject Dworkin’s claim that the law must be consistent with the previous “chapters” and that the ultimate “conclusion” of law will result in a definitive good. In reality, the law has upheld the interests of the dominant players in the past and current “chapters” of the law. What Dworkin refers to as just and good is in reality the reinforcement of the current prevailing political structure. The law is good for the dominant players of society and protects their interests to the exclusion of others.
Critical legal studies offers a unique understanding of R. v. Sharpe. Upon the first reading of the case, our group condemned Sharpe’s stance on child pornography. We quickly concluded that his perspective was immoral, perverse, and should not be considered by the Court. The law discarded his opinion and verified our initial reading of the case. Through the critical legal studies lens, our group was able to examine Sharpe’s position in a new light. Perhaps, Sharpe’s views were not truly illegal but rather in conflict with the interests of the dominant political structure. The dominant structure deems views like Sharpe’s as depraved and reinforces this opinion through the political process underlying the legal system. Hence, Sharpe’s actions are not just illegal but become offensive to society. Possibly, Sharpe’s opinion is not perverse but rather construed to be perverse. His views represent a minority and are not considered nor acknowledged within the dominant political power structure. If Sharpe’s opinion was considered the majority, the legal system would protect and reinforce it; rather than condemn it.
Different legal perspectives offer a varied approach in analyzing case law. As a law student, we normally strive to quickly decipher the ratio in the case without gaining a deeper understanding of the social forces and theories at work. By identifying the key legal theorists, we can come to understand what interests are represented and how that those interests play out. The dialogue between theorists is essential in understanding the stage of the legal system. As lawyers, we are actors on this stage - we need be aware of these perspectives and theories.