Keywords: Child pornography; private use exception, s.163.1 Criminal Code; age of consent.
Synopsis: The Respondents, 60-year old Donald Barabash and 42-year old Shane Rollision allowed two 14-year old girls to stay in Barabash’s home for a period of one and three weeks. Both girls had fled their homes, lived on the streets, and were regular users of crack cocaine and marijuana. The girls used the house for sleeping, eating, and consuming drugs (which at times were provided by the Respondents). Also during their stay, the girls were invited to engage in a variety of sexual conduct with each other and with the male Respondents on video. During 10 hours of recorded video, at different points Barabash is informed that the girls are 14 years of age and at one point one of the girls volunteers her birthdate during a conversation about her astrological sign. Despite this evidence, both Respondents were acquitted on all charges of making and possessing child pornography contrary to s.163.1(2)(4) of the Criminal Code. The trial judge found all elements of each offence were proven beyond a reasonable doubt but acquitted the accuseds on the basis that the material fell within the “private use exception” as read into s.163.1 of the Code as articulated by Chief Justice McLachlin in R. v. Sharpe, 2001 SCC 2 at para. 116. The Crown appealed the acquittals to the Alta.C.A.
Importance: The majority decision of Watson, J.A., and Slatter J.A. allowed the Crown appeal, set aside the acquittals, imposed verdicts of guilty on all charges, and remitted the case to the trial Court for sentencing pursuant to s.686(4)(ii) of the Criminal Code. Although the two girls had no objection to performing sexually for both males (who provided temporary shelter, food, and a location for drug use), “…in real terms both respondents, were in control of their environment, albeit temporarily” (at para. 35). The majority disagreed with the trial judge’s interpretation of Sharpe, and concluded:
“The absence of obvious violence or coercion is, under the circumstances here, insufficient to constitute the Sharpe exception…It was not a matter of moralism to characterize, for Sharpe purposes, the unlawfulness of the conduct as being the conduct of the respondents to instruct these runaway and highly vulnerable and deprived children to conduct themselves for the sexual entertainment of those two men. And it was not outside the scope of judicial notice to find that considerably more than a “nominal risk of harm” was inflicted on these two damaged kids. Based on the trial judge’s findings of fact, with the correct law applied to them, convictions of both of the respondents were inevitable” (at paras. 35-37).
Berger, J.A., in a dissenting opinion, upheld the acquittals as proper and stated “In my opinion, on the findings of fact made in the Court below, the “private use exception” defence is made out” (at para. 53). Justice Berger (also referring to Sharpe at paras. 116 and 128) concluded that if the sexual activity depicted in the pornographic material is unlawful, the consent of all parties “cannot be ensured and, when children are involved…when children are depicted participating in unlawful sexual activity, exploitation or abuse is presumed and consent is not ensured” (at para. 46). He then concluded on the private use defence:
“…the Appellants were not required to point to facts that establish that the complainants’ consent was obtained in circumstances precluding their exploitation or abuse, i.e. factual exploitation is not a separate and distinct additional requirement of a successful private use defence” (at para. 48).
Berger, J.A. concluded the girls willingly consented to and participated in the making of the recordings and the activity was lawful since 14 was, at the time of the offence, the age of consent (at para. 50).
Counsel for Appellant: James Robb, Q.C. & Julie Roy (Special Prosecutions Branch, Edmonton)
Counsel for Respondent Donald Barabash: Peter Royal Q.C. (Royal Teskey Barristers, Edmonton)
Counsel for Respondent Shane Rollison: Diana Goldie (Legal Aid Society of Alberta, Edmonton)