R v Barabash: Resolving the Debate Surrounding the Private Use Exception

On May 22, 2015, the Supreme Court of Canada (“SCC”) in R v Barabash, 2015 SCC 29 [Barabash], unanimously concluded that a new trial was necessary since both the trial judge and majority at the Alberta Court of Appeal (“ABCA”) erred in law in their analyses of the role of exploitation in the “private use exception” for the private recordings of sexual activities involving a young person.

The Facts

In 2008, two 14-year-old females, K. and D., ran away from an adolescent treatment centre and began to live with Donald Barabash (a sixty-year-old male). Shane Rollison, a fourty-one-year old male and the other appellant in this case, regularly visited Mr. Barabash’s home during the time that K. and D. were living with Mr. Barabash. While staying with Mr. Barabash, K. and D. were involved in the production of video recordings and still images with the appellants where K. and D. appeared nude and engaged in explicit sexual activities.

Mr. Barabash and Mr. Rollison were both charged with making child pornography, contrary to s. 163.1(2) of the Criminal Code, RSC 1985, c C-46. Mr. Barabash was also charged with possession of child pornography.

At the time the videos and photographs were made, 14-year-olds were legally able to consent to sexual acts with adults. (This has since been raised to 16.)

The Birth of the Private Use Exception

In R v Sharpe, [2001] 1 SCR 45 [Sharpe], the Justices of the SCC were faced with the difficult challenge of balancing the constitutional right to freedom of expression protected by s. 2(b) of the Charter and the important government objective of protecting children from the harm associated with the production of child pornography. The majority concluded that the objective of the provision prohibiting the making of child pornography outweighed the Charter breach, and therefore, the prohibition was justified under s. 1 of the Charter. 

In spite of their decision, the majority ultimately found that the prohibition “may catch some material that particularly engages the value of self-fulfilment and poses little or no risk of harm to children[,]” – namely, self-created expressive material and private recordings of lawful sexual activity (Sharpe, paras 75-76). In order to prevent this overbroad prohibition, the majority created two exceptions to the prohibition.

The first exception was meant to protect “deeply private expression, such as personal journals and drawings, intended solely for the eyes of their creator” (para 128). The second exception, being the private use exception, protects “a person’s possession of visual recordings created by or depicting that person but only where these recordings [(1)] do not depict unlawful sexual activity, are [(2)] held only for private use, and [(3)] were created with the consent of those persons depicted” [emphasis added] (para 128).

As outlined by the SCC in Sharpe, all three elements of the exception must be present for the exception to apply (para 116).

What is the Role of Exploitation in the Private Use Exception?

The majority at the ABCA, relying heavily on their decision in R v Cockell, 2013 ABCA 112 [Cockell], concluded that, in addition to the three elements, the private use exception contained a further standalone requirement that there be no factual exploitation or abuse involved in the creation of the recording (R v Barabash2014 ABCA 126, para 13, citing Cockell, para 36).

However, both the SCC and Berger JA (dissenting) of the ABCA found that the majority’s interpretation of Sharpe was incorrect, and that Sharpe did not mandate an additional element to the private use exception (Barabash, para 31). The SCC noted, “While alleged exploitation plays an important role in determining whether the private use exception is an available defence to child pornography charges, this consideration is already captured as part of the Sharpe analysis” (para 31).

Commentary: Is the Private Use Exception Clear with Respect to Exploitation?

It is of vital importance that courts thoroughly consider the issue of exploitation when faced with the recording of sexual activity involving young persons. However, the “exploitation” element of the private use exception is redundant, in that exploitative sexual activity is non-consensual, and therefore, already prohibited. Including this element, then, is not necessary in order to ensure that exploitation is addressed.

As previously stated, the “lawfulness” element requires that the recording must depict lawful sexual activity. In other words, if the recording depicts any sexual activity that is considered unlawful by any statute or common law, then the defence of the private use exception is not available to the accused. As noted by the SCC in Barabash, “[c]onsent is a prerequisite to the lawfulness of the sexual activity” (para 20).

Irrespective of the complainant’s age, s. 265(3)(d) of the Criminal Code states that no consent is obtained where “the complainant submits or does not resist by reason of…(d) the exercise of authority….” Additionally, under s. 273.1(2)(c), where “the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority…” consent cannot be obtained.

Furthermore, for young persons specifically, the Criminal Code states that “it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge…” where the accused person

is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who (a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or (b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person [emphasis added] (Criminal Code, ss. 150.1(1) and 153(1)).

In light of the circumstances of the case – namely the age difference between the accused and the complainants, and the complainants’ addictions, need for shelter, and past and ongoing experiences with homelessness and prostitution – the complainants did not resist likely due to the exercise of authority, and Barabash and Rollison abused positions of trust, power, or authority likely in order to induce the complainants to engage in sexual activity. Therefore, the exploitation of the complainants by the accused vitiates consent, which in turn culminates in sexual activity that is unlawful.

Although the “lawfulness” element does not explicitly mention exploitation, the issue of exploitation is properly subsumed within the “lawfulness” element since sexual activity cannot be lawful without consent, no matter the age of the individuals. Therefore, it is unnecessary to consider, as an additional element of the private use exception, whether or not the recording of a particular sexual act involving a young person was exploitive if it has already been determined that the sexual activity lacked consent due to exploitation or an exercise of authority. The absence or presence of exploitation is simply a way of determining whether or not there was consent.

In conclusion, the private use exception created by the SCC in Sharpe is clear with respect to exploitation, and therefore does not require the addition of a fourth element that deals exclusively with factual exploitation.

[filed: Uncategorized]

Henry v British Columbia: Defending Rights, or the State?

The Sorry Tale of Mr. Henry

Mr. Henry is an average person with an average life. Then one day, he is convicted of 10 sexual offences, declared a dangerous offender and sentenced to indefinite imprisonment. He spends the next 27 years in prison, writing dozens of appeals and requests, and, presumably, spending the rest of his time thinking about the cosmic unfairness of the universe and what he has done to deserve all this (which is nothing really).

27 years later, the British Columbia Court of Appeal, finally confirms that our protagonist is entirely innocent. It turns out that his trial was badly botched because the prosecution somehow failed to provide him with 30 inconsistent victim statements, forensic and medical evidence, and information concerning the existence of another suspect, twice arrested in the vicinity of the attacks (who knew all that would be important).

Unfortunately, this was not the plot summary of an amateur’s first play, but real events that led to the May 1, 2015 decision of the Supreme Court of Canada (“SCC”) in Henry v British Columbia (Attorney General), 2015 SCC 24 [Henry]. Read the rest of this entry »

[filed: Charter Criminal Law Remedies]

R v Nur: The Battle of Two Approaches to Challenging a Mandatory Minimum Sentence Under s. 52 of the Constitution Act, 1982

At the heart of the debate surrounding mandatory minimum sentences in Canada lies the insular but simple fact that Parliament, rather than the judiciary, dictates the application of such sentences to ensure that all offenders convicted of a specific crime receive at least a minimum term of imprisonment, regardless of the circumstances which surround the offence and the offender.

However, on April 14, 2015, the Supreme Court of Canada (“SCC”) came one step closer to regaining its control over sentencing with the release of its split decision in R v Nur, 2015 SCC 15 [Nur], on whether or not the mandatory minimum sentences of three and five years for possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code, RSC 1985, c C-46, contravened the right not to be subjected to any “cruel and unusual punishment” under s. 12 Canadian Charter of Rights and Freedoms.

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[filed: Charter Constitutional Law Criminal Law]

Hired Guns or Participating Witnesses? The Westerhof Appeal Shapes Expert Report Rules

In Westerhof v Gee Estate, 2015 ONCA 206 [Westerhof], the Court of Appeal for Ontario (“ONCA”) determined that experts who give opinions based on their participation in the events of a proceeding (a “participant expert”) may not need to comply with Rule 53.03 of the Rules of Civil Procedure, RRO 1990, Reg 194.

Rule 53.03 requires that experts provide a detailed report with a signed acknowledgement. Compliance with this Rule normally extends to all experts “engaged by or on behalf of a party.” However, this wording indicates that such a rule only applies to “litigation experts.” While there are compelling policy reasons for litigation experts to comply with Rule 53.03, these reasons do not extend to participant experts and other non-party experts. As a result, the Court of Appeal concluded that compliance with the rule is dependent on the type of expert, and not on the type of the evidence as claimed by the Divisional Court.

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[filed: Civil Procedure]

Hopkins v Kay: Health Law Information Remains Protected by the Common Law

In Hopkins v Kay, 2015 ONCA 112 the Ontario Court of Appeal (“ONCA”) ensured that parties who suffer misuse of their private health information can claim common law damages against the wrongdoer. The court found that statutory damages under the Personal Health Information Protection Act, 2004, SO 2004, c 3, Sch A [PHIPA], did not create an exhaustive means of redress.

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[filed: Access to Information Torts]

Religious Organization Oppressed its Members: Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta

A landmark decision of the Alberta Court of Appeal (“ABCA”) in Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, 2015 ABCA 101 [Sandhu], extends the oppression remedy outside of the corporate context and into the governance of religious organizations. Where governing members of religious organizations act oppressively, Alberta’s Religious Societies’ Land Act, RSA 2000, c R-15 [RSLA], permits other members to apply to a court and have the organization wound up. Members of Edmonton’s Siri Guru Nanak Sikh Gurdwara (“the Society”) made a successful claim under this provision, leaving an Alberta Chambers Judge to decide between winding up the society or fashioning a less severe remedy.

Choosing the latter option, the judge designed a remedy that restructured the religious society’s governance and internal processes.  Though intrusive, the remedy was upheld by the ABCA as an appropriate exercise of courts’ equitable jurisdiction in cases of oppression.

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[filed: Contracts Remedies Statutory Interpretation]

Police Officers Infringed Rights with Selective Searches during G20: Figueiras v Toronto (Police Services Board)

In Figueiras v Toronto (Police Services Board), 2015 ONCA 208, the scope of common law police powers were at issue in regards to their conduct with protesters during the 2010 G20 summit in Toronto. In what has been hailed a victory for G20 demonstrators, the Ontario Court of Appeal granted Mr. Figueiras’ appeal in holding that officers had infringed his Charter right to freedom of expression and his common law liberty rights, and had committed the tort of battery.

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[filed: Charter]

More on Morin and Institutional Delay: R v Williamson

The Supreme Court of Canada (“SCC”) will have an opportunity to bring some much-needed clarity to how analyses of unreasonable delay pursuant to section 11(b) of the Charter should be approached in its upcoming decisions in the appeals of both R v Williamson, 2014 ONCA 598 [Williamson], and R v Jordan, 2014 BCCA 241 [Jordan].

This piece will focus on the appeal of Williamson.

The guidelines for approaching section 11(b) claims were set out in R v Morin, [1992] SCR 771. Generally, a claim may merit section 11(b) scrutiny eight to ten months between committal and trial and a further six to eight months of delay following a preliminary inquiry.

After considering the length of the delay, any waivers of time periods, the reasons for the delays, and if and how the accused was prejudiced by the delay, courts need to consider whether the delay is justifiable while balancing the interests of the accused with the societal interests of hearing the trial on its merits.

The contrasting court of appeal decisions in Williamson and Jordan, however, illustrate the need for further guidance from the country’s top court.

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[filed: Charter]

Benchers Must Reconsider Lawyer’s Disbarment: The Law Society of British Columbia v Zoraik

In The Law Society of British Columbia v Zoraik, 2015 BCCA 137 [Zoraik], the British Columbia Court of Appeal (“BCCA”) held that Benchers of the Law Society of British Columbia (“LSBC”) failed to consider the Appellant’s Charter argument and whether it could refer a matter back to its Discipline Committee. As such, the BCCA referred the issue of whether Malcolm Zoraik is to be disbarred back to the Benchers. This decision is a further exemplification of the ability of administrative tribunals to deal with Charter questions post R v Conway, [2010] 1 SCR 765 [Conway].

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[filed: Administrative Law]

How Long is too Long? R v Sanghera and s. 11(b) of the Charter

Pursuant to s. 11(b) of the Charter, “[a]ny person charged with an offence has the right…(b) to be tried within a reasonable time….” This case is concerned with whether or not Mr. Savdip Sanghera’s s. 11(b) Charter right was violated, and if so, whether or not such a delay was reasonable.

On March 23, 2015, the Supreme Court of Canada (“SCC”) dismissed the appeal of R v Sanghera, 2014 BCCA 249 [Sanghera], from the British Columbia Court of Appeal (“BCCA”). The majority for the SCC affirmed MacKenzie J.A.’s decision that even “if [the trial judge] erred in not attributing to the Crown responsibility the five months’ delay arising from the direct indictment,…such error does not upset the overall result, as [there are] other factors [that] weigh more heavily on the other side of the balance” (Sanghera, para 148). Karakatsanis and Côté JJ. (dissenting), however, would have allowed the appeal for the reasons of Bennett J.A.

What is most interesting about this case is that neither the justices of the BCCA nor the justices of the SCC were able to agree with one another on whether or not Mr. Sanghera’s s. 11(b) Charter rights had been violated by the delay.

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[filed: Charter Criminal Law]