R. v. Barabash (D.J.) et al., 2012 ABQB 99

• Judge: Thomas, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 16, 2011
• Citations: 2012 ABQB 99;(2012), 532 A.R. 364 (QB)

R. v. Barabash (D.J.) (2012), 532 A.R. 364 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MR.012

Her Majesty the Queen v. Donald Jerry Barabash (081337842Q1)

Her Majesty the Queen v. Donald Jerry Barabash and Shane Gordon Rollison

(101344398Q1; 2012 ABQB 99)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Thomas, J.

February 14, 2012.

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 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.

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 214.2

General principles - Common law defences - Mistake of fact - The accused engaged in consensual sexual activities with two 14 year old girls while the co-accused videotaped the activities - 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" - The accused was charged with "making" child pornography - One of his defences was an honest but mistaken belief that the girls were over age 18 - The Alberta Court of Queen's Bench rejected the defence - The accused failed to take "all reasonable steps" to ascertain whether the girls were in fact over age 18 - Assuming that the accused did not know their true age, the evidence, at best, was that he was told they were 17 or 18 years of age - The court stated that the accused "could not simply rely on their appearance, drug and alcohol use, demeanor, and sexual conduct to discharge his legal obligation to take 'all reasonable steps' to establish that [the two girls] were adults" - See paragraphs 131 to 154.

Criminal Law - Topic 575.3

Sexual offences, public morals and disorderly conduct - Public morals - Obscenity - Making of child pornography - [see first 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" - The videos were found on Barabash's computer, along with still photographs put there by the girls without Barabash's knowledge - The accused had not accessed illegal internet sites or engaged in file sharing (i.e., no distribution) - Both accused raised the "private use" defence - The Alberta Court of Queen's Bench 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 court 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") - The 14 year old girls consented and the videos were held for private use only - At the time (March/April 2008), 14 year old girls could consent to sexual activity - Had the activities been recorded two months later, they would have been of illegal sexual activities (Criminal Code amendments) and the "private use" defence would have been unavailable - Private use was established where the videos remained in the "owner's" control - See paragraphs 1 to 189.

Criminal Law - Topic 588.4

Sexual offences, public morals and disorderly conduct - Public morals - Obscenity - Defences - Private use - The accused were charged with making child pornography - 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" - The Alberta Court of Queen's Bench found that the prerequisites for the "private use" defence were met: legal sexual activities made with the consent of the persons depicted and held for "private use" - At the time the child pornography was made, 14 year old girls could legally consent to sexual activity (Criminal Code amendments changed that two months later) - The Crown argued that "a private use material must have a critical self-expressive component, be directed to 'self-fulfilment and self-actualization', and not result in 'exploitation or abuse of children'" - The court rejected the argument on three grounds: "1. the explicit definition in R. v. Sharpe of private use materials, 2. that the absence of exploitation or abuse and the potential expression of self-fulfilment and self-actualization were a basis on which the Supreme Court of Canada evaluated and identified the necessity for the R. v. Sharpe private use exception, rather than required features of a private use material, and 3. that the court has a restricted ability to evaluate whether or not a potential private use material is exploitive or abusive, and does not involve self-fulfilment and self-actualization" - Legal sexual activities were neither abusive nor exploitive - Further, the powerful quality of self-expression, 'self-fulfilment and self-actualization' is not a necessary characteristic of private use materials, but rather a potential aspect of those kinds of recordings" - See paragraphs 190 to 278.

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, appld. [para. 3].

R. v. White, [1947] S.C.R. 268, refd to. [para. 27].

R. v. Terrence, [1983] 1 S.C.R. 357; 47 N.R. 8; 147 D.L.R.(3d) 724, refd to. [para. 102].

R. v. Kocsis (J.) (2001), 146 O.A.C. 383; 157 C.C.C.(3d) 564 (C.A.), refd to. [para. 102].

R. v. Katigbak (R.) (2011), 422 N.R. 1; 283 O.A.C. 331; 2011 SCC 48, refd to. [para. 106].

R. v. R.R.K., [2010] O.T.C. Uned. 330; 251 C.C.C.(3d) 272; 2010 ONSC 330, refd to. [para. 109].

R. v. Keough (J.A.) (2011), 501 A.R. 26; 2011 ABQB 48, refd to. [para. 112].

R. v. Hewlett (J.J.) (2002), 312 A.R. 165; 281 W.A.C. 165; 2002 ABCA 179, refd to. [para. 114].

R. v. Osborne (J.M.) (1992), 102 Nfld. & P.E.I.R. 194; 323 A.P.R. 194; 17 C.R.(4th) 350 (Nfld. C.A.), refd to. [para. 138].

R. v. Slater (F.) (2006), 269 Sask.R. 42; 357 W.A.C. 42; 2005 SKCA 87, refd to. [para. 140].

R. v. Levigne (M.R.) (2009), 464 A.R. 200; 467 W.A.C. 200; 2009 ABCA 359, affd. [2010] 2 S.C.R. 3; 403 N.R. 275; 482 A.R. 49; 490 W.A.C. 49, refd to. [para. 141].

R. v. Mastel (D.R.) (2011), 366 Sask.R. 193; 506 W.A.C. 193; 2011 SKCA 16, refd to. [para. 147].

R. v. Quintanilla (M.V.) (1999), 251 A.R. 59; 28 C.R.(5th) 186 (Q.B.), refd to. [para. 149].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 158].

R. v. C.M. (1995), 82 O.A.C. 68; 23 O.R.(3d) 629 (C.A.), refd to. [para. 168].

R. v. Roth (L.C.) (2002), 306 A.R. 387; 2002 ABQB 145, refd to. [para. 168].

R. v. D.D. (2007), 229 O.A.C. 20; 86 O.R.(3d) 721; 2007 ONCA 619, refd to. [para. 183].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81; 61 C.C.C.(3d) 1, refd to. [para. 204].

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 161; 95 D.L.R.(4th) 202, refd to. [para. 204].

JTI-Macdonald Corp. et al. v. Canada (Attorney General), [2007] 2 S.C.R. 610; 364 N.R. 89; 2007 SCC 30, refd to. [para. 204].

Grant et al. v. Torstar Corp. et al., [2009] 3 S.C.R. 640; 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, refd to. [para. 204].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577, refd to. [para. 204].

R. v. Audet (Y.), [1996] 2 S.C.R. 171; 197 N.R. 172; 175 N.B.R.(2d) 81; 446 A.P.R. 81; 135 D.L.R.(4th) 20, refd to. [para. 221].

R. v. Poncelet (L.S.), [2008] B.C.T.C. Uned. A62; 77 W.C.B.(2d) 400; 2008 BCSC 202, refd to. [para. 222].

R. v. Martin, 2011 ONCJ 401, refd to. [para. 222].

R. v. Galbraith (C.) (1994), 71 O.A.C. 45; 18 O.R.(3d) 247 (C.A.), refd to. [para. 223].

R. v. J.S.S. (2010), 362 N.B.R.(2d) 136; 934 A.P.R. 136; 2010 NBCA 51, refd to. [para. 224].

R. v. J.M.A. (2009), 283 Nfld. & P.E.I.R. 179; 873 A.P.R. 179; 2009 PECA 4, refd to. [para. 224].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237; 156 D.L.R.(4th) 385, refd to. [para. 230].

Little Sisters Book and Art Emporium et al. v. Canada (Minister of Justice) et al., [2000] 2 S.C.R. 1120; 263 N.R. 203; 145 B.C.A.C. 1; 237 W.A.C. 1; 2000 SCC 69, refd to. [para. 230].

R. v. Labaye (J.-P.), [2005] 3 S.C.R. 728; 342 N.R. 304; 2005 SCC 80, refd to. [para. 231].

R. v. Dominion News & Gifts (1962) Ltd., [1963] 2 C.C.C. 103; 43 C.R. 109 (Man. C.A.), revd. [1964] S.C.R. 251; 3 C.C.C. 1, refd to. [para. 231].

R. v. Kouri (J.), [2005] 3 S.C.R. 789; 342 N.R. 379; 2005 SCC 81, refd to. [para. 232].

R. v. Keough (J.A.) (2011), 512 A.R. 1; 271 C.C.C.(3d) 486; 2011 ABQB 312, refd to. [para. 237].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1; 89 D.L.R.(4th) 449, refd to. [para. 238].

R. v. J.A., [2011] 2 S.C.R. 440; 417 N.R. 1; 2011 SCC 28, refd to. [para. 243].

R. v. D.B., [2008] 2 S.C.R. 3; 374 N.R. 221; 237 O.A.C. 110; 2008 SCC 25, refd to. [para. 255].

R. v. Bridgeman, 2011 ONCJ 117, refd to. [para. 259].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 261].

Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; 183 N.R. 325; 82 O.A.C. 243; 125 D.L.R.(4th) 385, refd to. [para. 261].

R. v. J.S. (2006), 244 N.S.R.(2d) 268; 774 A.P.R. 268; 2006 NSSC 163, refd to. [para. 266].

K.S. v. J.P.H. et al., [2004] B.C.T.C. 769; 132 A.C.W.S.(3d) 54; 2004 BCSC 769, refd to. [para. 266].

Authors and Works Noticed:

Patrick, Jeremy, Sexual Exploitation and the Criminal Code (2006), 43 Alta. L. Rev. 1057, p. 1067 [para. 225].

Counsel:

Julie Roy, for the Crown;

Peter J. Royal, Q.C., for Donald Jerry Baradash;

Diana Goldie, for Shawn Gordon Rollison.

This matter was heard on October 31 to November 4, November 8 and December 16, 2011, before Thomas, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on February 14, 2012.