July 27th, 2015
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.
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,  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 Barabash, 2014 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.