R. v. Barabash, 2015 SCC 29 (Criminal law — Child pornography — Defences — Private use exception)

On appeal from the judgment of the Alberta Court of Appeal (2014 ABCA 126) setting aside the acquittals entered by Thomas J. (2012 ABQB 99)

Two girls, age 14, were runaways from a treatment centre. They stayed with the accused B, age 60, whereas the other accused, R, age 41, was a regular visitor. The girls were involved in sexual activity, which was depicted on video and in photographs, with each other and with R. At the time the videos and photographs were made, 14‑year‑olds could legally consent to sexual acts with adults. Both B and R were charged with making child pornography, contrary to s. 163.1(2) of the Criminal Code. B was also charged with one count of possessing child pornography, contrary to s. 163.1(4). B and R were tried together. The trial judge found that all of the elements of the offences were established; however, the accused raised in defence the private use exception outlined in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45. The judge concluded that the Crown had failed to disprove the exception beyond a reasonable doubt. The Court of Appeal allowed the appeals, substituted guilty verdicts and remitted the cases for sentencing.

Held (9:0): The appeals should be allowed and a new trial ordered.

The private use exception outlined in Sharpe serves as a defence to the offence of making or possessing child pornography, contrary to s. 163.1 of the Criminal Code. This private use exception requires a determination that the sexual activity depicted in recordings is lawful, that the sexual activity is also consensual and that the recordings of it are held exclusively for private use. In Sharpe, the Court did not mandate a separate and additional exploitation inquiry. Adding such a step would be unnecessary, as exploitation is already captured under the lawfulness inquiry. Section 153 of theCriminal Code makes sexual exploitation of a young person a crime.  Thus, where the Crown seeks to rely on s. 153 to negate the legality of the sexual activity depicted, the judge must consider whether it occurred in the context of an exploitative relationship. If so, the sexual activity is not lawful, and the private use exception does not apply.

Where s. 153 is engaged, the consent of the young person to the sexual activity cannot render it lawful. Thus, where an accused raises the private use exception and the Crown seeks to challenge the lawfulness of the sexual activity on the basis of exploitation, a trial judge must look beyond whether or not consent was given and holistically examine the nature and circumstances of the relationship between the young person and the accused. Section 153(1.2) provides a non‑exhaustive list of indicia from which a trial judge may infer that the relationship between the accused and a young person is exploitative: (a) the age of the young person; (b) the age difference between the person and the young person; (c) the evolution of the relationship; and (d) the degree of control or influence by the person over the young person. It is not necessary that the person accused of making or possessing child pornography be charged separately under s. 153(1) in order for a judge to undertake this inquiry. The lawfulness of the sexual activity is independently assessed as part of the defence.

In this case, the trial judge did not consider whether the relationship between the girls and the accused was exploitative within the meaning of s. 153, despite the fact that, at the time, s. 153 applied to young persons between the ages of 14 and 17. Where the trial judge did consider evidence that would be relevant to exploitation, he did so in isolation, looking at the factors one at a time. For example, he identified the girls’ age and the substantial difference in age between them and the accused, but found this was an insufficient basis for concluding that this difference was exploitative. However, 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.

In other words, the trial judge’s analysis focused primarily on the voluntariness of the sexual activities, instead of on the nature of the relationship between the parties. While the voluntariness of sexual activities is an important aspect of lawfulness, it does not end the inquiry. The trial judge was also required to holistically assess the nature and circumstances of the relationship to determine whether the sexual activity was rendered unlawful under s. 153. By failing to consider whether the underlying relationship between the girls and the accused was exploitative, the trial judge erred in law. This error had a material bearing on the accused’s acquittals and requires a new trial. 

The judgment of the Court was delivered by Karakatsanis J.

Neutral Citation: 2015 SCC 29. Docket Nos. 35977, 36064