New trial in case involving runaway teens in porn video
OTTAWA — The Supreme Court of Canada has ordered a new trial in the case of two Edmonton men who made child pornography after videotaping two 14-year-old girls performing sex acts.
Donny Barabash and Shane Rollison were acquitted at their 2012 trial of making child pornography because the judge accepted that the so-called private-use exception was available to them as a defence.
The Alberta Court of Appeal overturned the acquittal and convicted the men, but it was not a unanimous decision. One Appeal Court justice said the private-use exception was available because the videos were consensual and for private use.
But the Supreme Court was unanimous in its ruling that the private-use defence cannot be used if it is determined that the girls were sexually exploited.
The high court ruled that the trial judge focused too much on the question of consent, and not the broader issue of whether the girls were exploited.
“The trial judge was also required to holistically assess the nature and circumstances of the relationship to determine whether sexual activity was rendered unlawful,” wrote Justice Andromache Karakatsanis for the court.
“By failing to consider whether the underlying relationship between the complainants and the appellants was exploitative, the trial judge erred in law.”
The saga of two girls, who were 14 at the time, began when they ran away from a High Prairie, Alta. treatment centre and found their way to Edmonton.
One of the girls had fallen into prostitution, and they abused crack cocaine and marijuana.
They went to stay with Barabash, then 60, and Rollison, then 41, who supplied them with drugs and a roof over their heads.
The girls also performed explicit sex acts on video, which Barabash kept and never showed them.
One of the girls was asked if she wanted to do what she did, according to the federal attorney general’s factum.
“I wanted the drugs,” the girl replied.