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.
At the time, a 14-year-old could consent to sexual activity but the law has since raised the age of consent to 16.
The trial judge and the one appeal court judge supported an acquittal for the men on the basis that the sex acts and the recording were "ostensibly consensual," and that the pornography that was created was privately held.
But the Supreme Court offered further clarification, in a ruling that will guide how the two men are retried, saying that "even if a young person consents to the sexual activity, it may nonetheless be unlawful in certain circumstances."
The high court ruling said that another section of the Criminal Code makes it an offence to exploit youths up to age 17. The criteria includes if the young person is in a "relationship of dependency" or if an adult "invites, counsels or incites a young person" to engage in activity with a sexual purpose.
In its written argument to the Supreme Court, the federal attorney general said the harm that child pornography inflicts on children must be assessed when the private-use defence is raised.
"In short, the narrow interpretation is a recipe for the exploitation of vulnerable youth."
