R. v. Barabash (D.J.) et al., (2015) 471 N.R. 143 (SCC)

• Judge: McLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 22, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 471 N.R. 143 (SCC);2015 SCC 29;[2015] 7 WWR 1;[2015] 2 SCR 522

R. v. Barabash (D.J.) (2015), 471 N.R. 143 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.R. TBEd. MY.019

Donald Jerry Barabash (appellant) v. Her Majesty the Queen (respondent)

(35977)

Shane Gordon Rollison (appellant) v. Her Majesty the Queen (respondent) and Attorney General of Canada, Attorney General of Ontario, Canadian Civil Liberties Association, Beyond Borders and Canadian Centre for Child Protection Inc. (interveners)

(36064; 2015 SCC 29; 2015 CSC 29)

Indexed As: R. v. Barabash (D.J.) et al.

Supreme Court of Canada

McLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté, JJ.

May 22, 2015.

Summary:

The accused (Barabash and Rollison) were charged with making child pornography. Barabash was also charged with possessing child pornography. There were two 14 year old complainants who were videotaped and photographed engaging in various consensual sexual activities with Rollison. The accused raised the "private use" defence. At issue was whether there was an air of reality to the defence and whether the Crown disproved beyond a reasonable doubt any or all of the elements of the "private use" defence.

The Alberta Court of Queen's Bench, in a judgment reported (2012), 532 A.R. 364, held that there was an "air of reality" to the "private use" defence and the Crown failed to disprove any of the elements of that defence. The court acquitted the accused of the child pornography charges. The Crown appealed.

The Alberta Court of Appeal, Berger, J.A., dissenting, in a judgment reported (2014), 572 A.R. 289; 609 W.A.C. 289, allowed the appeals, substituted convictions for acquittals, and remitted the matter for sentencing. The accused appealed.

The Supreme Court of Canada allowed the appeals, set aside the convictions and ordered a re-trial. The test articulated in R. v. Sharpe (SCC) required the trial judge to determine whether the sexual activity depicted was lawful and thus did not arise in the context of an exploitive relationship. As this specific question was not considered, a new trial was required.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 575.1

Sexual offences, public morals and disorderly conduct - Public morals - Obscenity - Possession of child pornography - [See second Criminal Law - Topic 588.4 ].

Criminal Law - Topic 575.3

Sexual offences, public morals and disorderly conduct - Public morals - Obscenity - Making of child pornography - [See second Criminal Law - Topic 588.4 ].

Criminal Law - Topic 588.4

Sexual offences, public morals and disorderly conduct - Public morals - Obscenity - Defences - Private use - The "private use exception" was a defence to the offences of making or possessing child pornography - The Supreme Court of Canada held that the accused had to raise an air of reality to the defence, which required that: (1) the recording depicted lawful sexual activity; (2) the persons depicted consented to the sexual activity; and (3) the recording was held for private use - If an air of reality was raised, the defence was put to the jury and the Crown had the burden of disproving the defence beyond a reasonable doubt - The underlying sexual activity was not lawful where the child depicted in the sexual activity was of an age capable of giving consent, but that consent was invalid where the relationship was exploitive or one of dependency, or where the other participant was in a position of trust or authority - The court stated that "the exception relates not only to consent to the creation of the recording, but also to the ongoing nature of the possession. This imports notions of privacy and control in the creation, use, and ongoing possession of the recording." - The court opined that "the balance struck between the right of free expression and preventing harm to children in Sharpe suggests that young persons who participate in a sexual recording caught by the private use exception retain the ability to ensure its return or destruction." - The absence of factual exploitation was not an element of the private use exception additional to the elements of lawfulness and consent - Exploitation rendered the consensual sexual activity unlawful - "Where an accused raises the private use exception and the Crown seeks to challenge the lawfulness of the sexual activity based on exploitation, a trial judge must look beyond whether or not consent was given and holistically examine the nature and circumstances of the relationship between the young person and the accused" - The court stated that it was unnecessary to decide whether an exploitive relationship could vitiate consent in circumstances where the exploitation was not caught by the lawfulness analysis respecting s. 153 of the Criminal Code (sexual exploitation) - Mutuality of benefit was not a standalone requirement for the private use exception - See paragraphs 18 to 53.

Criminal Law - Topic 588.4

Sexual offences, public morals and disorderly conduct - Public morals - Obscenity - Defences - Private use - The two accused (Barabash and Rollison) were charged with making child pornography (Barabash also charged with possession) for videotaping two 14 year old girls engaging in various consensual sexual activities with each other and with Rollison - The girls were drug-using runaways, who were sexually experienced, looked older than they were, and who in fact directed the sexual and non-sexual activities that were filmed, while the accused were more "passive" - Both accused raised the "private use" defence - The trial judge held that the Crown failed to disprove the "private use" defence - The accused were acquitted - The defence applied only to legal sexual activities made with the consent of the persons depicted and held for "private use" - At the time (March/April 2008), 14 year old girls could consent to sexual activity - Where there was de facto consent, the age differences, the drug involvement and the circumstances of the two girls did not remove the lawfulness of what occurred (no exploitation or abuse) - The Alberta Court of Appeal allowed the Crown's appeal and substituted convictions, stating that "The trial judge's interpretation of that exception effectively comes down to a conclusion of law that if there is de facto consent, and if the content of the video does not depict a crime such as an assault or a statutory form of exploitation or breach of trust as criminalized by Parliament, then the content of the video does not depict 'unlawful sexual activity' and therefore does not fall outside the Sharpe exception. ... this reasoning is wrong in law." - The absence of abuse or exploitation was an element of the defence - Based on the judge's fact findings, the "private use" exception did not apply and convictions were inevitable - The Supreme Court of Canada allowed the accused's appeal and ordered a new trial - The trial judge erred in not considering exploitation during the lawfulness analysis and by focussing on the voluntariness of particular activities rather than the nature of the relationship between the parties to determine whether the sexual activity was rendered unlawful under s. 153 of the Criminal Code (sexual exploitation) - The Court of Appeal erred by including the absence of exploitation as another element of the exception rather than as part of the element of the lawfulness of the sexual activity - The court stated that a new trial was required where "the trial judge's factual findings do not adequately establish whether the appellants were in positions of trust or authority towards the complainants, whether the complainants were dependent upon them, or whether the relationships were exploitative of [the complainants] as required by s. 153 - See paragraphs 54 to 63.

Cases Noticed:

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 1].

R. v. L.W. (2006), 208 O.A.C. 42 (C.A.), refd to. [para. 26].

R. v. Pickton (R.W.), [2010] 2 S.C.R. 198; 404 N.R. 198; 290 B.C.A.C. 264; 491 W.A.C. 264; 2010 SCC 32, refd to. [para. 54].

R. v. Sappier (D.M.) et al., [2006] 2 S.C.R. 686; 355 N.R. 1; 309 N.B.R.(2d) 199; 799 A.P.R. 199; 2006 SCC 54, refd to. [para. 54].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 54].

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 58].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 58].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 163.1(1) [para. 14].

Counsel:

Peter J. Royal, Q.C., for the appellant, Donald Jerry Barabash;

Diana C. Goldie and Thomas Slade, for the appellant, Shane Gordon Rollison;

Jolaine Antonio and Julie Morgan, for the respondent;

Jeffrey G. Johnston, for the intervener, the Attorney General of Canada;

Christine Bartlett-Hughes and Lisa Henderson, for the intervener, the Attorney General of Ontario;

Alexi N. Wood and Kate Southwell, for the intervener, the Canadian Civil Liberties Association;

David Matas and Monique St. Germain, for the interveners, Beyond Borders and Canadian Centre for Child Protection Inc.

Solicitors of Record:

Royal Teskey, Edmonton, Alberta, for the appellant, Donald Jerry Barabash;

Legal Aid Alberta, Edmonton, Alberta; Supreme Advocacy, Ottawa, Ontario, for the appellant, Shane Gordon Rollison;

Attorney General of Alberta, Calgary, Alberta, for the respondent;

Attorney General of Canada, Ottawa, Ontario, for the intervener, the Attorney General of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

Davis, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association;

David Matas, Winnipeg, Manitoba; Canadian Centre for Child Protection Inc., Winnipeg, Manitiba, for the interveners, Beyond Borders and Canadian Centre for Child Protection Inc.

This appeal was heard on January 16, 2015, before McLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté, JJ., of the Supreme Court of Canada.

On May 22, 2015, Karakatsanis, J., delivered the following judgment in both official languages for the Court.