R. v. Barabash (D.J.) et al., (2014) 572 A.R. 289

• Judge: Berger, Watson and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 03, 2014
• Citations: (2014), 572 A.R. 289;2014 ABCA 126

R. v. Barabash (D.J.) (2014), 572 A.R. 289; 609 W.A.C. 289 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. AP.021

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

(1203-0032-A)

Her Majesty the Queen (appellant) v. Shane Gordon Rollison (respondent)

(1203-0033-A; 2014 ABCA 126)

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

Alberta Court of Appeal

Berger, Watson and Slatter, JJ.A.

April 3, 2014.

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, allowed the appeals, substituted convictions for acquittals, and remitted the matter for sentencing.

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 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 Criminal Law - Topic 588.4 ].

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 recorded sexual activities constituted child pornography that was "made" by both Barabash (as recorder) and Rollison (as a participant) - However, the Crown failed to disprove that the "private use" defence applied - The judge acquitted the accused - The defence applied only to legal sexual activities made with the consent of the persons depicted and held for "private use" (i.e., remained in the control of its "owners") - 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 - The court stated 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 - Berger, J.A., dissenting, did not agree that "separate and apart from the lawfulness or otherwise of sexual activity, 'the evidence must show [and the accused must point to facts that establish] that the complainant's consent was obtained in circumstances precluding her exploitation or abuse'" - See paragraphs 24 to 37, 43.

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. 4].

R. v. Katigbak (R.), [2011] 3 S.C.R. 326; 422 N.R. 1; 283 O.A.C. 331; 2011 SCC 48, refd to. [para. 10].

R. v. Cockell (B.A.) (2013), 553 A.R. 91; 583 W.A.C. 91; 2013 ABCA 112, leave to appeal denied [2013] S.C.C.A. No. 309, refd to. [para. 13].

R. v. Barros (R.) (2010), 477 A.R. 127; 483 W.A.C. 127; 2010 ABCA 116, affd. [2011] 3 S.C.R. 368; 421 N.R. 270; 513 A.R. 1; 530 W.A.C. 1; 2011 SCC 51, refd to. [para. 16].

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. 16].

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. 16].

United States v. Apel (2014), 571 U.S. 1038, refd to. [para. 17].

Crandon v. United States (1990), 494 U.S. 152, refd to. [para. 17].

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 19].

R. v. Vezeau, [1977] 2 S.C.R. 277; 8 N.R. 235, refd to. [para. 20].

R. v. Morgentaler, [1976] 1 S.C.R. 616; 4 N.R. 277, refd to. [para. 20].

R. v. Scalbania (N.M.), [1997] 3 S.C.R. 995; 220 N.R. 349; 99 B.C.A.C. 81; 162 W.A.C. 81, refd to. [para. 21].

R. v. Krieger (G.W.), [2006] 2 S.C.R. 501; 354 N.R. 1; 401 A.R. 381; 391 W.A.C. 381; 2006 SCC 47, refd to. [para. 21].

R. v. J.M.H., [2011] 3 S.C.R. 197; 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 22].

R. v. Park (S.J.) (2010), 482 A.R. 153; 490 W.A.C. 153; 2010 ABCA 248, refd to. [para. 23].

R. v. Ewanchuk (S.B.), [1999] 1 S.C.R. 330; 235 N.R. 323; 232 A.R. 1; 195 W.A.C. 1; 131 C.C.C.(3d) 481, refd to. [para. 23].

R. v. Tran (T.K.), [2010] 3 S.C.R. 350; 409 N.R. 1; 493 A.R. 123; 502 W.A.C. 123; 2010 SCC 58, refd to. [para. 23].

R. v. Flaviano (V.T.) (2014), 454 N.R. 85; 569 A.R. 1; 606 W.A.C. 1; 2014 SCC 14, refd to. [para. 23].

R. v. Legare (C.B.), [2009] 3 S.C.R. 551; 396 N.R. 98; 469 A.R. 168; 470 W.A.C. 168; 2009 SCC 56, refd to. [para. 23].

R. v. Levigne (M.R.), [2010] 2 S.C.R. 3; 403 N.R. 275; 482 A.R. 49; 490 W.A.C. 49; 2010 SCC 25, refd to. [para. 23].

Bedford et al. v. Canada (Attorney General) (2013), 452 N.R. 1; 312 O.A.C. 53; 303 C.C.C.(3d) 146; 2013 SCC 72, refd to. [para. 33].

Authors and Works Noticed:

Slane, Andrea, From Scanning to Sexting: The Scope of Protection of Dignity-Based Privacy in Canadian Child Pornography Law, [2010] Osgoode Hall L.J. 543, generally [para. 11].

Counsel:

J.C. Robb, Q.C., and J.M.L. Roy, for the appellant;

P.J. Royal, Q.C., for the respondent, Donald Jerry Barabash;

D.C. Goldie, for the respondent, Shane Gordon Rollison.

These appeals were heard on October 2, 2013, before Berger, Watson and Slatter, JJ.A., of the Alberta Court of Appeal.

On April 3, 2014, the memorandum of judgment was delivered and the following judgments were filed:

Watson and Slatter, JJ.A. - see paragraphs 1 to 38;

Berger, J.A., dissenting - see paragraphs 39 to 54.