In the spring of 2008, DM and KB were 14-year-old girls, crack cocaine users, and runaways. Having lived on the streets for some time, they temporarily opted to take shelter at the residence of Donald Barabash, who was 60 years old at the time. DM stayed for a week, while KB remained for two to three weeks. The two young girls consumed drugs provided by unidentified “boyfriends,” Barabash, and a frequent visitor of the residence, Shane Rollison, who was 42 years old. Barabash and Rollison invited the girls to take part in sexual activity with them and with each other. The activity was videotaped and Barabash kept the videos after the girls had left the residence. These events occurred before April 30, 2008, when legislation came into effect raising the age of consent from 14 to 16 years: see S.C. 2008, c. 6, ss. 13, 54.
The trial judge acquitted the accuseds of making and possessing child pornography on the basis of the “private use exception” read into s. 163.1 of the Code by R v Sharpe, 2001 SCC 2,  1 SCR 45. Without testimony from Barabash or Rollison, the Court found that the accuseds had met the evidential onus described in paragraph 116 of Sharpe:
The second category would protect auto-depictions, such as photographs taken by a child or adolescent of him or herself alone, kept in strict privacy and intended for personal use only. It would also extend to protect the recording of lawful sexual activity, provided certain conditions were met. The person possessing the recording must have personally recorded or participated in the sexual activity in question. That activity must not be unlawful, thus ensuring the consent of all parties, and precluding the exploitation or abuse of children. All parties must also have consented to the creation of the record. The recording must be kept in strict privacy by the person in possession, and intended exclusively for private use by the creator and the persons depicted therein. Thus, for example, a teenage couple would not fall within the law’s purview for creating and keeping sexually explicit pictures featuring each other alone, or together engaged in lawful sexual activity, provided these pictures were created together and shared only with one another. The burden of proof in relation to these excepted categories would function in the same manner as that of the defences of “artistic merit”, “educational, scientific or medical purpose”, and “public good”. The accused would raise the exception by pointing to facts capable of bringing him or her within its protection, at which point the Crown would bear the burden of disproving its applicability beyond a reasonable doubt. [Emphasis added]
In the trial judge’s view, Sharpe defined “unlawful” almost exclusively on the basis of whether the young persons had given de facto consent. He concluded that if the young person gives de facto consent to the activity, and the video does not feature a crime such as an assault or reveal a statutory form of exploitation or breach of trust, then the video does not contain “unlawful sexual activity.”
After the appeal in Barabash was launched, the Court of Appeal in R v Cockell, 2013 ABCA 112, 553 AR 91, leave denied  SCCA No. 309 (QL) found the trial judge’s interpretation of Sharpe to be incorrect. At para 37:
I do not interpret Chief Justice McLachlin’s comments in para 116 in Sharpe, “That activity must not be unlawful, thus ensuring the consent of all parties, and precluding the exploitation or abuse of children” as meaning that consent from a person under the age of 18, but over the age of 14 (now 16), compels the conclusion that there was no exploitation or abuse in the creation and possession of the material in question[.]
The Court in Cockell decided that the crucial phrase ought to be read disjunctively, so that child pornography is lawful only where consent has been given by someone at least 14 years of age (now 16) to create it and that the creation and possession is done in an atmosphere free of exploitation or abuse of the young person. Cockell thereby confirmed that an absence of factual exploitation is an element of the defence. Leave was still pending before the Supreme Court at the time when the Barabash appeal was heard. But, at the time of the decision, Cockell had become binding law.
In light of that decision, the majority in R v Barabash, 2014 ABCA 126 concluded that it was unlawful for the accuseds to instruct highly vulnerable, deprived, runaways to perform sexual acts for their entertainment. The Court underscored this finding by stating that judicial notice could be taken of the considerable harm that was inflicted on these “damaged kids” through the making of this child pornography.
Justice Berger, in dissent, found that the acquittals should have been upheld. He agreed with the majority that it is an error of law to find that consent on the part of the young person conclusively rebuts the possibility of exploitation. However, in his view, “unlawful” as defined in para 116 in Sharpe refers only to the nature of the sexual activity depicted in the pornographic material and not to any extraneous factors. In other words, the accuseds were not required to prove, as a separate element of the defence, facts that show that the young people were not exploited. On the basis of the facts found by the trial judge, the dissent found that verdicts of acquittal were properly recorded.
This case may be headed to the Supreme Court of Canada, as the accuseds have a right of appeal to that court (due to the decision being the reversal of an acquittal, and as there was a dissent on a point of law).
This guest post is by Alex Bailey. Alex completed a Bachelor of Arts degree at McGill University in Montreal before returning to Alberta to pursue a Master’s degree in English Literature. After graduate school, she attended law school and was called to the Bar in August of 2011. She now works as a Crown Prosecutor, with a general practice, in Edmonton.