New trial ordered in porn case
Supreme Court rules that ‘private use’ is not a defence for videos of 14-year-old girls
OTTAWA— The Supreme Court of Canada has ordered a new trial for two Alberta men in a ruling that narrows the criminal defences available under child pornography laws.
The case involves Donald Barabash and Shane Rollison, who were convicted by the Alberta Court of Appeal for making videos of two troubled 14-year-old girls. The men were found not guilty at their original trial.
The girls, with histories of drug addiction, family troubles and in one case prostitution, had run away from an adolescent treatment centre and were holed up at Barabash’s Edmonton house. He was a friend of one of the girl’s fathers and known to them as a drug dealer.
In the following days, Barabash made video recordings and still pictures of the girls participating in sexual activity with Rollison. At times, the girls themselves operated the camera.
The high court’s unanimous ruling clarifies that an accused person may not claim a defence of “private use” in cases where there are elements of exploitation in the making of allegedly pornographic material.
It further develops the high court’s landmark ruling in 2001in the case of B.C. man Robin Sharpe. That ruling said an accused person is not guilty of a criminal offence when the suspect can prove he or she alone created and held the written or visual material for personal use and when the visual recording does not depict “unlawful activity.”
Friday’s ruling takes a broader view of what should be considered “unlawful” and says that a judge must look “holistically” at the nature and circumstances of the relationship between an accused and the alleged victim.
“A trial judge must look beyond whether or not consent was given,” wrote Justice Andromache Karakatsanis on behalf of the nine-member panel which heard the appeal in January.
She listed a number of things that may indicate an exploitative relationship: the age of the young person, the age difference between the person and the young person, the evolution of the relationship and the degree of control or influence by the person over the young person.
Karakatsanis said an accused per- son need not be specifically charged with sexual exploitation of a minor. But a court must conduct that inquiry.
Karakatsanis ruled that the trial judge, who originally acquitted the accused men, looked at the relationship between the men and girls in isolation.
“He did not assess this age difference in light of other aspects of the relationship, such as the impact of the girls’ addictions, their need for shelter or their past and ongoing experiences with homelessness and prostitution.
“In short, he did not consider the specific factors in light of the broader context or whether they cumulatively resulted in an exploitative relationship.”
She said the trial judge looked primarily at the “voluntariness of the sexual activities instead of the nature of the relationship between” the men and the girls.
“While the voluntariness of sexual activities is an important aspect of lawfulness, it does not end the inquiry.”
The ruling requires the Crown to prove beyond a reasonable doubt that there was exploitation, rendering any defence of “private use” unavailable to an accused.