R. v. Barabash, 2012 ABQB 99

Court of Queen ’ s Bench of Alberta Citation: R. v. Barabash, 2012 ABQB 99 Date: 20120214 Docket: 081337842Q1 Registry: Edmonton Between: Her Majesty the Queen [Crown] - and - Donald Jerry Barabash [Defendant] AND Docket: 101344398Q1 Her Majesty the Queen [Crown] - and - Donald Jerry Barabash and Shane Gordon Rollison [Defendants]

Restriction on Publication: By Court Order, information that may identify the persons described in this judgment as D. and K. may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. See the Criminal Code , s. 486.4 _____________________________________________________ Reasons for Judgment of the Honourable Mr. Justice D.R.G. Thomas __________________________________________________ I.

Introduction.............................................................................................................. Page: 4 II. Background............................................................................................................ Page: 5 III. Submissions........................................................................................................... Page: 6 IV. Evidence................................................................................................................. Page: 7 A.

Admitted Facts........................................................................................... Page: 7 B. Testimony of the Complainants................................................................ Page: 7 1. D...................................................................................................... Page: 7 a. Evidence............................................................................. Page: 7 b. Credibility............................................................................ Page: 8 2.

K....................................................................................................... Page: 9 a. Evidence............................................................................. Page: 9 b. Credibility.......................................................................... Page: 10 3. Complainant testimony - conclusion.......................................... Page: 11 C. Testimony of Police Witnesses.............................................................. Page: 11 1. Sgt. Mark Coates......................................................................... Page: 11 2. Sgt.

George Edwards................................................................. Page: 12 D. Video Recording and Computer-Based Evidence.............................. Page: 12 1. Video recordings......................................................................... Page: 12 a. Recordings 1, 7, 9, and 10............................................. Page: 12 b. Recordings 2, 13............................................................. Page: 13

c. Recordings 3, 12............................................................. Page: 13 d. Recording 4...................................................................... Page: 14 e. Recording 5...................................................................... Page: 14 f. Recordings 6, 14............................................................. Page: 14 g. Recordings 8, 16............................................................. Page: 14 h. Recording 11.................................................................... Page: 15 i.

Recording 15.................................................................... Page: 15 j. Recording 17.................................................................... Page: 15 k. Recording 18.................................................................... Page: 15 l. Recording 19.................................................................... Page: 16 m. Recording 20.................................................................... Page: 16 n. Recording 21.................................................................... Page: 16 o.

Recording 22.................................................................... Page: 16 p. Recording 23.................................................................... Page: 16 q. Recording 24.................................................................... Page: 17 r. Recording 25.................................................................... Page: 17 s. Recording 26.................................................................... Page: 17 t. Video recordings - conclusions...................................... Page: 17 2.

The Nexopia Image..................................................................... Page: 19 V. Findings of Fact................................................................................................... Page: 19 VI. Preliminary Conclusion - The Still Photos and Nexopia Image...................... Page: 20 VII. Issues.................................................................................................................... Page: 20 VIII. Analysis................................................................................................................. Page: 21 A.

Child Pornography................................................................................... Page: 21 B. Making Child Pornography..................................................................... Page: 22 1. Barabash - the ‘ Recorder ’ .......................................................... Page: 22 2. Participants in sexual activity...................................................... Page: 23 C. Possession of Child Pornography......................................................... Page: 25 D. Rollison Reasonably Investigated the Ages of the Complainants...... Page: 25 1.

The submissions of the parties.................................................. Page: 25 2. The law.......................................................................................... Page: 25 3. Analysis......................................................................................... Page: 28 4. Conclusion - requirement to investigate age............................ Page: 30 E. Private Use Status as a Defence........................................................... Page: 30

F. The Scope of the R. v. Sharpe Private Use Exception........................ Page: 30 1. Legal sexual activities................................................................. Page: 32 2. Consent to record........................................................................ Page: 33 3. Private recordings....................................................................... Page: 34 4. Additional R. v. Sharpe private use material criteria............... Page: 35 a. Crown ’ s argument............................................................ Page: 35 b.

Additional criteria for private use materials.................. Page: 37 c. The R. v. Sharpe definition of private use materials.... Page: 37 d. The rationale and scope of a constitutional exception are distinct Page: 38 e. The character and circumstances of private use materials Page: 40 i. Age of the participants........................................ Page: 41 ii. The recorded sexual activity............................... Page: 43 iii. Drug use............................................................... Page: 45 iv. A synergy of negative factors............................. Page: 46 v.

Public and criminal youth jeopardy.................... Page: 47 (aa) Enhanced rather than reduced criminal jeopardy to young persons............................................................................... Page: 47 (bb) Prosecutorial discretion...................................... Page: 48 (cc) Clear guidelines for youth................................... Page: 48 (dd) Disproportionate effect on marginal and minority youth Page: 49 vi. Who judges expression, self-exploration, abuse, and exploitation?............................................................................... Page: 50 IX.

Conclusion............................................................................................................ Page: 51 I. Introduction [ 1 ] Donald Jerry Barabash ( “ Barabash ” ) and Shane Gordon Rollison ( “ Rollison ” ) are charged with making child pornography: Criminal Code , R.S.C. 1985, c. C-46, s. 163.1(2). Barabash is also charged with one count of possessing child pornography: Criminal Code , s. 163.1(4). Both Barabash charges relate to the same alleged child pornography. [ 2 ] Many of the facts and circumstances involved in this matter are not in dispute.

Both child complainants, K. and D., were available to the Court and testified. The alleged child pornography provides a concrete record of the relevant events and interactions between the Defendants and the complainants. [ 3 ] The substantial issue that forms the principal focus of this judgment is whether the Crown has proved beyond a reasonable doubt that the two Defendants “ made ” child pornography. The Accused have advanced the defence of “ private use ” , which is a Canadian Charter of Rights and Freedoms ,

Part 1, Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [the “ Charter ” ] exception identified by the Supreme Court of Canada in R. v. Sharpe , 2001 SCC 2 , [2001] 1 S.C.R. 45 to some of the Criminal Code , s. 163.1 child pornography offenses.

[ 4 ] The two analytical steps that flow from this defence are whether: 1. the Defendants have made out an “ air of reality ” for the elements of the defence, and 2. the Crown has disproved beyond a reasonable doubt any or all of the elements of the “ private use ” defence. [ 5 ] The scope of “ private use ” materials has not been the subject of much judicial commentary. This trial appears to be the first occasion in which a superior court in Canada has investigated whether non-criminal conduct can exclude recordings of sexual activity from the R. v.

Sharpe private use material category, and a number of other related issues. II. Background [ 6 ] Two forms of potential child pornography were identified in this case: 1. video recordings recovered in several formats from the Barabash home, and 2. still photographs of the complainants recovered from a computer in the Barabash home. One of the still photographs of the complainants was uploaded to Nexopia, a public Internet ‘ social networking ’ website. Police became involved after discovery of and complaints about this photograph (the “ Nexopia Image ” ).

The police investigation into this photo led to identification of the complainants, the search that recovered the videos and still photographs, the arrest of Barabash and Rollison, and ultimately this trial. [ 7 ] In late March/early April of 2008 Barabash hosted one or more get togethers at his home in central Edmonton. The sessions took place in a basement suite where there were several computers, including one equipped with a web camera.

During what appear to be at least two distinct sessions Barabash created video images of Rollison and two juvenile girls, K. and D., who it is alleged were 14 years of age at that time. Barabash and Rollison are adults who respectively appear to be 50-60 and 25-35. [ 8 ] The video recordings depict K. and D. engaged in a variety of sexual activities with each other and with Rollison. Those activities include fellatio, cunnilingus, mutual masturbation, masturbation with vibration devices, and penetration of the female K. with a large black dildo.

Rollison is shown being fellated by K. and also engaging in what appears to be anal intercourse with K. [ 9 ] With the exception of one video (Recording 21) the other recordings do not depict Barabash involved in any clear and significant way in sexual activities. His role is primarily restricted to one of an observer and recorder of these events. [ 10 ] Rollison, K. and D. all appear to engage in this array of sexual activity on a voluntary basis.

Crack cocaine and perhaps marijuana are said to have been on offer although the two young women depicted are not visibly intoxicated by either alcohol or drugs in the various recordings. [ 11 ] On another occasion K. and D. were photographed using a web camera to create the Nexopia Image, which illustrates D. biting K. ’ s naked breast. That photograph was later uploaded onto D. ’ s Nexopia website profile, where the Nexopia Image could be viewed by the public.

[ 12 ] No charges have been pursued against the complainants for their participation in making the videos and still photographs, or for the uploading of the Nexopia Image to D. ’ s public Nexopia website. III. Submissions [ 13 ] The Crown argues that the recordings are child pornography as they meet the Criminal Code , s. 163.1(

a) criteria of: a photographic, film, video or other visual representation ... (

i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or (ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; [ 14 ] K. and D. were 14 at the time of the recording. The Crown says Barabash and Rollison “ made ” child pornography: Criminal Code , s. 163.1(2).

Barabash retained the recorded materials, and thus is allegedly guilty of “ possession ” of child pornography: Criminal Code , s. 163.1(4). [ 15 ] Counsel for Barabash acknowledges his client ’ s role in making and possession of material that is child pornography per the Criminal Code , s. 163.1(

a) definition, but argues: 1. that material falls in the R. v. Sharpe private use category, 2. the private use exception is a defence in law, 3. the evidence makes out an “ air of reality ” for that defence, and 4. that the Crown has failed to disprove an element of the private use defence beyond a reasonable doubt. [ 16 ] These arguments are adopted by Rollison, but his counsel also argues that her client is not guilty as he was unaware of the age of the complainants, and that he took reasonable steps to establish that K. and D. were and appeared to be over 18 years of age: Criminal Code , s. 163.1(5). IV.

Evidence [ 17 ] Most of the evidence heard in this case is generally consistent. Both D. and K. gave statements to the police, and testified at trial. The majority of their evidence correlates well with the events seen in the video recordings. The Defendants did not testify.

A. Admitted Facts [ 18 ] The Defendants admit certain relevant facts: 1. that Barabash was the sole resident of the home where the alleged child pornography was located; 2. two duplicate DVDs with the video recordings of sexual activities were located in that residence, one in Barabash ’ s bedroom, the other in his office; and 3. two computers seized from the Barabash home each contained video recordings of the complainants. B. Testimony of the Complainants 1. D . a. Evidence [ 19 ] Complainant D., now 18 years of age, testified.

She explained the context of the complainants ’ interactions with Barabash and Rollison. She had become acquainted with Barabash over a year before the recordings occurred. He was a friend of her father and 17 year old cousin. Barabash was also a fellow user of and source for drugs. D. acknowledges that she visited his house frequently. Rollison was another friend of Barabash who would visit his house, and also dealt drugs. [ 20 ] D. says that Barabash knew her true age from various sources, including her father and cousin, but that Rollison did not know her age.

That said, D. testified that she commonly said she was 17 or 18 years of age. [ 21 ] D. ’ s frequent trouble with authorities led to her being a ward of the state and in 2008 she was sent to a youth program in High Prairie. There she met K. and together they ran away, first to a High Prairie pawn shop, then to Edmonton and the Barabash residence. D. ’ s testimony is inconsistent on how much time she then spent at the Barabash residence and how much with her father.

The two to three week period following her return from High Prairie is when D. says the sexual activities and video recordings occurred. [ 22 ] D. denied memory or knowledge of the video recordings at trial and when interviewed by police, saying she was “ stoned out of her mind ” and did not recall anything. Throughout this period she operated in a drug-addled state. That said, she also testified that she knew how the Nexopia Image was posted online, and that her recorded nudity was her own idea.

D. says during that two to three week period she never had sex with anyone other than her boyfriend, “ M.C. ” . [ 23 ] This witness testified Barabash gave K. crack, and also acted as K. ’ s pimp. D. does not say she saw Barabash and K. engage in sexual activity.

Apparently there was some hostility between the complainants during and after this period. [ 24 ] When investigators first approached D. concerning the Nexopia Image she acknowledged that she had posted that image, and identified K. as the other young woman. [ 25 ] On cross-examination D. acknowledged her criminal history, willingness to lie, and that her original police statement included intentional lies. She also admitted ongoing drug and alcohol use.

b. Credibility [26] The Accused have challenged the credibility and reliability of the two complainants. A credibility and reliability analysis isappropriate given the circumstances of this matter, and so the evidence of D. and K. must be reviewed and weighed by the Court. [27] Credibility is a question of fact, and evaluation of credibility is a multifactoral exercise that potentially involves many aspectsof a witness. Estey, J. in R. v.

White, (SCC), [1947] S.C.R. 268 at 272, 89 C.C.C. 148 provides a useful overview of someof the factors that may be relevant when the credibility of a witness is evaluated: The general integrity and intelligence of the witness, his powers to observe, his capacity to remember and his accuracy in statement areimportant. It is also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank orwhether he is biassed, reticent and evasive.

All these questions and others may be answered from the observation of the witness’ generalconduct and demeanour in determining the question of credibility. [28] Under aggressive cross-examination D. confirmed she has lied and will lie when it suits her purpose. She was also vague onmany points, indicating that she had no memory of certain periods and events.

Her attitude and manner was confrontational anddismissive. [29] I do not believe her in many instances, as I think some of her claims were to conceal her knowledge and participation in thesexual activities and recordings. [30] I generally accept her chronology of her interactions with Barabash and Rollison, and her characterization of activities at thathouse. I believe D. minimized her drug use when she said she just used marijuana.

As for the sexual activities and recordings, I note thatwhile D. at first indicated no memory of those events, she then provided commentary and observations on events in the relevant period,such as who had engaged in sexual activities, that the recorded nudity was voluntary, and provided some explanation of how the NexopiaImage of her and K. was posted on D.’s public Nexopia account.

My conclusion is that D. has testified to distance herself from the druguse and recorded sexual activity in an attempt to minimize her potential legal liability, particularly in relation to the Nexopia Image,which was clearly a point of conflict between the two complainants. [31] Overall, I consider D. a witness with poor credibility, and see her only reliable when her testimony is supported by otherevidence, or is essentially irrelevant to blame, particularly her own. 2. K. a. Evidence [32] K., now 17, testified in court.

K. is several months younger than D., though she appears older both in the video recordingsand at the time of testifying in this trial. She is also a troubled young woman, and told the Court that she was a street child who useddrugs and engaged in prostitution from the age of 12-13 onward. K. acknowledges long-term and frequent drug abuse, which has evolvedfrom crack cocaine to often daily consumption of crystal meth. On cross-examination K. admitted that her ongoing drug use has led tomemory impairment and generally had deleterious effects on her physical and mental state.

This was apparent from viewing her in thewitness box. [33] K.’s explanation of how she ended up in the Barabash residence matches with that given by D. D. introduced K. to Barabash.K. says that she had no contact with either Defendant except for the two to three week period she stayed at that location. Her descriptionof the Barabash residence is that of a stereotypic ‘crack house’, with a wide variety of persons visiting to sell, buy, and use various illegaldrugs. [34] K. indicates that she never lies about her age, and that both Accused were aware she was 14 because that was a topic of

discussion. Barabash was apparently shocked to find she was that young. [ 35 ] Unlike D., K. acknowledges memory of the sexual activity that is found on the video recordings. She reports she engaged in recorded sexual activities with D. and Rollison, but none with Barabash. She used crack cocaine during the filmed events. Barabash operated the web camera throughout most of the recordings, but the other participants at times also held and used the camera.

In her 2008 police statement and at trial K said that her participation in the sexual activity and recording was voluntary; that “ we didn ’ t do anything we didn ’ t want to ” . At trial K. explained that her perspective on the recorded sexual activity has subsequently changed, and that in retrospect she now would not have consented to what happened. [ 36 ] K. provided some more context on the Nexopia Image. She confirmed the picture depicts K. nude while D. kissed K. ’ s breast. She says that the police said the image was created by D. and then posted online without K. ’ s consent.

K. also seems to indicate the Nexopia Image was created solely by K. and D. using a Barabash computer and the web camera, operating on a time delay. K. appears to have been angered by the public Internet posting of the Nexopia Image, and in her April 2008 police interview asked if charges could be laid against D. as a consequence of the Nexopia Image. [ 37 ] K. reports she performed oral sex on Barabash and allowed him to touch her in sexual ways, but never engaged in sexual intercourse. She confirmed that none of this contact or activity was recorded.

Exchange of drugs for sexual favours was the focus of both Crown and Defence questioning of this witness. K. was explicit that she received crack cocaine and marijuana from Barabash, however what is less clear is whether that sexual activity was ‘ purchased ’ or whether the drug use was associated with sexual activity. K. explained that no formal exchange arrangement existed, but suggested one was implied. When she engaged in sex with Barabash and Rollison then drugs would be provided and used. She admitted Barabash never asked for sexual favours. b.

Credibility [ 38 ] K. said she was an honest person but did acknowledge that she had lied to police, for example denying she was a prostitute. Her drug use is also a cause for concern. She admitted to the use of crack cocaine from a very early age and to being an often daily user of crystal meth during the last three years. Her physical appearance and demeanor in the witness box indicated to me that she was probably addicted to some controlled and illegal substances. Her testimony was barely audible at times and it was necessary on many occasions to have her evidence read back by the court reporter.

She admitted to being a user of illegal drugs and also conceded that her memory had been affected by the abuse of substances such as cocaine and crystal meth. [ 39 ] I nevertheless conclude that this witness was generally truthful. Her explanation of the events surrounding production of the video recording and the general environment of the Barabash residence correlate well with those of D. and the video recordings themselves.

I accept that Barabash and Rollison were not responsible for the Nexopia Image, and K. ’ s explanation that D. posted the Nexopia Image to D. ’ s public Internet profile without K. ’ s knowledge or consent. [ 40 ] I also note K. acknowledged that she in March-April 2008 she consented to the sexual activity between herself, D., and Rollison, and recording of her nudity and that sexual activity.

I also conclude that she and Barabash never entered into any formal agreement to exchange drugs for sexual activity, but that K. had concluded that she would have a better prospect of sharing drugs with Barabash if she engaged in sexual activities with that Defendant and his friend Rollison. [ 41 ] I put restricted weight on K. ’ s testimony in light of her significant and ongoing history of abuse of illegal drugs. I conclude, however, that the fact K. acknowledged her consent and role in direction and control of the sexual activities and recording is significant.

She admits that she was the one who determined the extent and kind of her sexual activities while at the Barabash residence. She may have undertook actions with the intention of obtaining drugs, which is not surprising for a young drug addict, but those actions did not involve barter or exchange. 3. Complainant testimony - conclusion [ 42 ] I conclude that the evidence of D. and K. is of limited reliability. That said, the lack of reliability inherent in the evidence from the two complainants is not critical because the video recordings provide direct and relevant evidence bearing on many of the

elements of the offences faced by Barabash and Rollison. C. Testimony of Police Witnesses [ 43 ] The Crown called two police officers to testify on the investigation that led to this trial, and specifically on the location and character of the alleged child pornography materials. Both were credible witnesses. 1. Sgt. Mark Coates [ 44 ] Sgt. Mark Coates of the Edmonton Police Service [ “ EPS ” ] provided evidence on the investigation of the Nexopia Image and subsequently of the two Accused. He interviewed the complainants, who he characterized as runaways. Sgt.

Coates described the search and seizure of computers, data storage devices, and two DVDs from the Barabash home. These two DVDs each had a handmade title, “ [K] Shane ” , but were otherwise identical. [ 45 ] Review of a video recording of the residence shows that the complainants generally described the organization and contents of the Barabash home in an accurate manner. [ 46 ] This witness conducted an initial review of the recovered computers and data storage devices where he identified eight video recordings that he concluded were child pornography.

These were also the video recordings present on the two “ [K] Shane ” DVDs. Sgt. Coates identified 26 unique child pornography photographs, 25 of which were still images automatically captured during a video recording process. Sgt. Coates testified a person using a computer would be unaware that these 25 still images had been created. The final image was of a kind that was actively created by a person using software. [ 47 ] All the video recordings and still images alleged to be child pornography depict D., K., and the two Accused.

Many other pornographic images and videos were identified from the Barabash electronic devices, but none appeared to be child pornography. Sgt. Coates did not find evidence of illegal Internet website access or file sharing. 2. Sgt. George Edwards [ 48 ] RCMP Sgt. George Edwards investigated the computers and electronic data storage devices recovered from the Barabash home. I qualified him as an expert in the forensic examination of computer data.

He used specialized equipment and software tools to evaluate the contents of those storage devices in a non-destructive manner, categorized the kinds of images and video recordings he identified, searched for other evidence of other activities that relate to child pornography, and prepared the expert reports that were entered into evidence at trial on those topics. [ 49 ] Sgt. Edwards explained to the court his methodology and its results. His results largely matched those obtained by Sgt. Coates. Sgt.

Edwards located two additional video recordings that he concluded are child pornography, but those also depicted D. and K. He was unable to identify computer data that further explained the source of the video recordings and still photographs of D. and K. that he and Sgt. Coates had identified. [ 50 ] Sgt. Edwards expanded on Sgt. Coate ’ s investigation of the use of the computers and confirmed the absence of any evidence of Internet access to or distribution of child pornography materials. He characterized his investigation of the Barabash electronic devices and storage as exhaustive. D.

Video Recording and Computer-Based Evidence 1. Video recordings

[ 51 ] The video recordings of D., K., and the Accused were recovered in several forms from the Barabash home. The video recordings recovered from the Barabash computers and located on the DVDs are essentially identical. There is no dispute that these recordings were made in March and April of 2008, though the exact date of their creation is not clear. Neither the identity of the persons involved nor the location of the recorded events are in dispute. [ 52 ] A total of 26 child pornography video recordings were identified by police investigators and included in Sgt. Edward ’ s Forensic Report.

Some are duplicates. a. Recordings 1, 7, 9, and 10 [ 53 ] This is an approximately 51 minute recording in an office area. D., K., and both Accused are visible. The webcam position is static, and there is no evidence that the persons present are aware they are being recorded. It appears D. and K. are operating the Barabash computer and are at the center of the field of view. [ 54 ] D. and K. are topless. There is no sexual contact, other than Barabash at one point briefly puts clothes pins on K. ’ s breasts.

Drugs appear to be used. [ 55 ] Through most of the recording D. operates the computer, apparently surfing Internet websites and choosing music. D. and K. also have the following exchange after Barabash mentions the web camera: D. We can do pornos with it? K. And put it on the net. [whistles] D. With these computers I can blur faces and all that stuff. K. If you can hide my picture, like my face, then yeah. b. Recordings 2, 13 [ 56 ] Recordings 2 and 13 are duplicates, approximately eight minutes long, and also take place in the office area. The camera is aimed at a desk that has been covered with a blanket.

D. and K. are seen and both are nude. Barabash and Rollison’s voices can be heard. [ 57 ] D. and K. engage in various sex acts with one another. D. operates the camera, or instructs Barabash to control the camera. D. instructs the Accused to play selected music. c. Recordings 3, 12 [ 58 ] Recordings 3 and 12 are duplicates, and 114 minutes long. Both D. and K. are visible, as are Barabash and Rollison. The beginning of this recording depicts sexual activity between K. and Rollison, and D. and K. [ 59 ] The parties are clearly aware the recording is underway.

When the web camera is held or positioned it is usually by

Barabash, though the camera is also held by D. The majority of the action is dictated by the complainants, who are generally the active parties. They initiate most of the activities, though Barabash makes a few suggestions. The sexual activities are interspersed with conversation about social acquaintances, sexual activities, family members, and drug use. The participants also discuss what music to play. [ 60 ] After the sexual activities the participants discuss a drug purchase, and the D. and K. indicate they have cash they can contribute.

Barabash leaves to purchase cigarettes. [ 61 ] There are several interesting exchanges between those present. Partway through the sexual activities D. and K. discuss the age of consent: D. Hey Donnie, I ’ m 14, it ’ s the age of consent. Barabash: Really? It is? K. Yeah, its actually legal. [ 62 ] Later there is a brief conversation on uploading material onto the Internet: D. Hey Donnie, are you going to put this on the Internet? Barabash: No. K. No? Hey, but if you do try and put it on a website ... K.’s comment is then interrupted by a loud exchange between D. and Rollison. d.

Recording 4 [ 63 ] This is a one second long recording of a female, probably K though her head is not visible, sitting in front of the Barabash computer and wearing a blue and white bathrobe. The female is not nude. e. Recording 5 [ 64 ] Recording 5 is 18 minutes long, video only, and has no audio component . It starts with K. sitting in front of the Barabash computer, wearing the blue and white bathrobe and panties. Her breasts are visible. K. seems to be using the computer, and does not appear to control or pay attention to the web camera.

At one point K. inflates what is either a balloon or condom, and then writes on it with a black felt marker. [ 65 ] K. leaves, and an unidentified male with a beard briefly enters the field of view, then leaves. K. returns and uses drugs. There is no evidence K. or the unidentified male are aware they were being recorded.

f. Recordings 6, 14 [ 66 ] These video recordings are 13 minutes long, and depict D. and K., both of whom are nude. Barabash and Rollison can be heard speaking. At various points the image is altered by digital visual effects, which are apparently controlled by D. [ 67 ] D. and K. lead and direct this recording session. K. dances, poses nude, and masturbates. Barabash is directed by D. to record K. From her statements and conversation D. seems to be emailing information while operating the Barabash computer, although the nature of those email activities is not clear. g.

Recordings 8, 16 [ 68 ] These recordings are brief, and depict D. and K. putting on makeup. They seem to be using the web camera as a mirror. Barabash ’ s voice can be heard. Both D. and K. are nude. h. Recording 11 [ 69 ] This 20 minute recording depicts only K. and Barabash. Barabash is wearing the blue and white housecoat, while K. is topless and wearing jeans. Intermittently the audio component is masked by loud static. [ 70 ] There is no evidence that K. and Barabash are initially aware they are being recorded. The video recording starts with K. pouring herself an alcoholic drink.

In the sequences that follow K. ’ s torso blocks the web camera view. The two converse socially, largely about music. The camera then moves, showing Barabash. They briefly kiss. Later the camera is adjusted to aim at K. while she dances to a song by Nine Inch Nails. Barabash declines an invitation to join K. as she dances. i. Recording 15 [ 71 ] Recording 15 is 14 minutes long, and largely depicts K. while masturbating. D. appears briefly and the two engage in contact. Both are nude. Barabash ’ s voice is audible throughout the recording but he only appears briefly at its end.

D. seems to operate the computer and applies a number of digital visual effect filters. K. and D. discuss these effects. [ 72 ] Late in the recording K. invites D. to join her, which leads to an exchange: D. Me on camera? I ’ m like camera shy. K. You ’ ll get over it, spend a few days with me, work the [indecipherable] I work, and you won ’ t be shy any more. j. Recording 17 [ 73 ] D. and K. appear topless but with neither face visible in this 29 second recording. D. appears to be speaking on a phone. The camera’s field of view is then adjusted to an empty chair.

The context or purpose of this recording is not obvious. k. Recording 18

[ 74 ] Recording 18 is five minutes long, and likely occurred several days after many of the other video recordings. K. is visible wearing a tank top and panties. Barabash is briefly seen wearing the blue and white housecoat. During the video K. removes her top and Barabash briefly squeezes her breast. Both appear to watch and comment on Internet video recordings of K. ’ s relatives. Like Recording 11 the audio component of this recording is periodically masked by loud static. l. Recording 19 [ 75 ] Barabash and K. are visible in Recording 19, which is 25 minutes long.

The camera is stationary through most of this recording, which is generally dark. Loud static makes up most of the audio component, but during audible portions Barabash and K. engage in conversation with each other and another female, apparently named Stephanie, who is never seen. [ 76 ] K. is topless when visible. Both K. and Barabash use drugs. There is no sexual activity. Much of the recording is of an unoccupied field of view. m. Recording 20 [ 77 ] Only K. is visible in this five minute recording. Through much the recording she sits in a chair, topless, and smokes.

Most of the audio track is loud static, but the portions that are audible indicate K. is conversing with Barabash. They discuss K. ’ s relatives, and at the end of the recording K. asks about taking a still photograph of herself using the web camera. [ 78 ] The camera ’ s position remains stationary until the very end of the recording. There is no evidence that K. or Barabash are aware a video recording was underway. n. Recording 21 [ 79 ] Recording 21 is 13 minutes long, and largely depicts K., though Barabash is also visible. Most of the audio track is static.

Barabash wears the blue housecoat, while K. wears a miniskirt. Barabash records K. masturbating with a large black dildo, and later also contacts and masturbates K. K. then poses for the web camera. [ 80 ] K. and Barabash are clearly aware that they are being recorded, and the web camera ’ s field of view is adjusted, apparently by Barabash. o. Recording 22 [ 81 ] Only K. is visible in this seven minute recording. Some of the audio track is static. K. is topless and speaks with Barabash. K. plays with various nipple clamps as the recording progresses. Barabash adjusts the camera while K. poses. p.

Recording 23 [ 82 ] K. and Barabash are visible in Recording 23. The recording, which is 23 minutes long, focuses on K. when she is present. The camera angle remains constant, except once when it is adjusted by either K. or Barabash. Much of the sound component is static. [ 83 ] K. is topless and wearing jeans. Through most of the video recording she appears to operate a computer, selecting music. Both K. and Barabash converse with someone named Stephanie, who again is never seen. Barabash swats K. with a riding crop and asks

her to remove her jeans and dance. K. removes her jeans. Both K. and Barabash consume drugs. [ 84 ] Barabash explicitly states in this recording that K. is 14 years old. Rollison is not visible. q. Recording 24 [ 85 ] Recording 24 is three minutes long, and appears to depict K. Both the video and audio component of this recording is highly distorted, at least part due to application of a fish-eye lens effect. K. is fully clothed throughout the recording. There is no apparent reason why this recording was identified by Sgt. Edwards as child pornography. r.

Recording 25 [ 86 ] Recording 25 has a single static camera view that continues for six minutes. K. and Barabash enter and leave through the field of view. K. is topless, and smokes drugs. Both converse with Stephanie, who remains off-screen. There is no evidence K. or Barabash are aware that they were recorded. [ 87 ] K. explicitly tells Barabash her date of birth near the beginning of this video recording: K. Thursday, January 21, 1994. Barabash: So you are an Aquarius. K. Uh huh. s. Recording 26 [ 88 ] This ten minute video depicts K., who wears only panties.

She is in conversation with Barabash, who holds and aims the web camera throughout the recording. Most of their discussion is inaudible due to static, but what can be heard and K.’s activities suggest that they are discussing and sketching K.’s planned tattoos. t. Video recordings - conclusions [ 89 ] Review of the video recordings indicates all activities took place at one location. The same common features are visible throughout the background.

The order of the recordings above may be roughly chronological, as in the first recordings listed above the parties appear less familiar and conversation often involves aspects of their background and history. Skin blemishes visible on K. in the ‘ early ’ recordings also appear reduced in ‘ later ’ recordings, suggesting some days had passed. [ 90 ] Most of the recordings do not involve sexual activity. Some arguably were not created by Barabash, and Rollison never appears to have either operated the computer or web camera.

D. is clearly the person who is most familiar with the relevant equipment and software, both operating the computer and editing software. That is consistent with K. ’ s testimony. Barabash is unable to provide assistance or information when D. asks about the web camera ’ s capabilities and operation. [ 91 ] For certain recordings there is a question as to whether the persons recorded were even aware a recording had occurred. For example, Recordings 4 and 5 appear accidental. In light of the admission by Defence counsel that the video recordings are child

pornography, I will not attempt to identify which video recordings were made (or not made) by particular individuals. For Recordings 3 and 12, which are the crucial video recordings for this case, there is no real dispute that Barabash manipulated the web camera and Rollison was recorded engaged in sexual activities with K. In that recording it is clear all participants are aware of the web camera and video recording. [ 92 ] D. and K. appear to be sexually mature but young females. Their manner and appearance clearly does not exclude the possibility that they are under 18 years of age.

K. ’ s conduct throughout the recordings, which is best characterized as provocative and exhibitionist, would be unusual for a person of any age. [ 93 ] The tone and atmosphere of the video recordings is unexpected. The males are generally passive, while the complainants are the individuals who direct most activities, sexual or otherwise. When present D. tends to monopolize the Barabash computer, to surf Internet sites, select music, and while active recording is underway. K. is the central individual during sexual activity, whether alone or with partners.

Both D. and K. are excited by their roles in the recording process. [ 94 ] The complainants ’ recorded activities demonstrate that they are sexually experienced, which matches the complainants recorded comments. D. and K. indicate that they were sexual intimates prior to their period residing at the Barabash home, and the character of their recorded interactions support that statement. Both D. and K. appear to view their own or others nudity as practically inconsequential.

For K. that extends to her sexual activity. [ 95 ] Most viewers would likely find the apparently casual character of the recorded activities unexpected, given their content. Conversation occurs throughout most of the recordings, and flows from casual exchanges to explanations of personal history, discussion of acquaintances, drug use, and the complainants ’ sexuality and sexual experiences. More often music selection is the focus of conversation instead of any nudity or ongoing sexual activities. The recordings make plain that D. and K. were not coerced into nudity or sexual activity.

Direction by either Accused is minimal. Rather, D. and K. clearly control and direct their activities, more in response to one another than to the two males present. 2. The Nexopia Image [ 96 ] The Crown entered into evidence printouts of D.’s Nexopia website profile in April 2008, which featured a number of images of D., as well as a single image of D. and K. together. K. is topless, and D. is shown biting K.’s breast.

This image, which I have called the Nexopia Image, was publically available to Internet users registered with the Nexopia service. [ 97 ] A duplicate of this image was recovered by police from the Barabash computers. [ 98 ] Public display of this kind of imagery allegedly falls outside Nexopia ’ s terms of use, and complaints about that breach are what ultimately led to the police investigation and this trial. V. Findings of Fact [ 99 ] The Crown relies on a variety of evidence, but particularly the imagery and related audio tracks on the DVDs entered as Exhibits 3 and 4.

Even though the complainants ’ credibility and reliability is suspect, for the most part their testimony correlates with the video recordings. If nothing else that correlation strongly suggests that video recordings do not have a substantially different sub-textual meaning that may not be obvious to a viewer. In other words, what one sees in those recordings is an accurate reflection of the character and nature of the sexual interactions and recording. The recorded activities were not, for example, some form of role-playing. [ 100 ] Based on that evidence I find that:

1. The complainants D. and K. appear in the video recordings and still images. 2. D. and K. are recorded while nude and engaged in explicit sexual activity. 3. D. and K. were 14 years of age at the time that both the video recordings and still photographs were created. 4. Many of the video recordings used a static web camera or minimal camera control. When a sequence of recorded sexual activityhas an active camera operator then that operator was generally Barabash, though D. and K. at times handle the web camera. 5. Rollison engaged in a variety of sexual activities with the complainants that were recorded.

Barabash’s recorded sexual activitiesare generally restricted to digital masturbation of K. in Recording 21. 6. D. and K. may have been under the influence of crack cocaine, and potentially other drugs and alcohol, however they were bothaware of both their nudity and the sexual activities in which they were engaged, and that their activities were being recorded. These factsare demonstrated by the recorded activities, and confirmed by the complainants’ testimony. 6. D. and K. willingly consented to and participated in the making of the recordings.

There is no evidence in either the video or stillimages which shows that the complainants were coerced into participating in the sexual activities or nudity. No acts of violence orthreats of violence are seen in any of the exhibits. Instead, D. and K. initiate and direct many of the activities. Again, the complainants’testimony correlates with the evidence of the recordings. 7. D. and K. did not engage in sex or pose nude in exchange for drugs. The video recording shows no sign of any such exchange,and the testimony of the complainants is generally consistent on that point.

Instead in one recording D. and K. offer to buy drugs for thegroup. 8. The Nexopia Image was created and distributed by D. and K. without any involvement or consent by either Defendant. D. postedthe Nexopia Image to her public Nexopia profile. 9. Other still images identified on Barabash’s computers were created without his knowledge as part of the video recording process. VI. Preliminary Conclusion - The Still Photos and Nexopia Image [101] I conclude that the Defendants had no involvement in the creation or distribution of the Nexopia Image.

D. and K. were clearin their testimony that neither Defendant had made that image. D. uploaded it without anyone else’s participation. D. used Barabash’scomputer and web camera without his knowledge. [102] Similarly, I have concluded that Barabash had no knowledge of the other still images stored on his computer. Possession in acriminal context requires both knowledge and control: R. v. Terrance, (SCC), [1983] 1 S.C.R. 357, 147 D.L.R. (3d)724); R. v. Kocsis (2001), (ON CA), 146 O.A.C. 383, 157 C.C.C. (3d) 564 (Ont. C.A.).

Barabash arguably hadcontrol of the material located on his computer, but he cannot be criminally liable without his knowledge of those images. [103] In light of these conclusions I will not consider these materials in the child pornography analysis that follows.

VII. Issues [ 104 ] The issues in this trial are: 1. Are the video recordings child pornography? 2. Did the two Accused “ make ” child pornography? 3. Did Barabash possess child pornography? 4. Did Rollison take “ all reasonable steps ” to verify that D. and K. were over the age of 18 years? 5. If the R. v. Sharpe private use exception applies:

a) does that exception operate as a defence?

b) have the Accused made out an “ air of reality ” in respect to the components of the defence?

c) has the Crown disproven any of the elements of the private use defence? [ 105 ] The Criminal Code includes a limited defence to the s. 163.1 child pornography offenses.

Section 163.1(6) negates criminal liability where the child pornography has a legitimate scientific, medical, educational, artistic, or justice purpose, and does not put young persons at undue risk. [ 106 ] The Defendants do not deny liability on the basis of the Criminal Code , s. 163.1(6), nor do I see any application for those defences in light of the recent R. v. Katigbak , 2011 SCC 48 , 422 N.R. 1 Supreme Court of Canada commentary on those provisions. VIII. Analysis A. Child Pornography [ 107 ] Child pornography is defined by Criminal Code , s. 163.1(1). Here the materials are visual recordings, which fall s into the s. 163(1)(

a) facet of the definition: 163.1

(1) In this section, “ child pornography ” means (

a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(

i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or (ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; ... [ 108 ] I conclude that the Crown has proven beyond a reasonable doubt that D. and K. are the two females in the video recordings, and that D. and K. were under the age of 18 when the video recordings were made. Both girls at that time were 14 years old.

While this point was to some degree disputed I conclude that the testimony of the complainants at trial in relation to their date of birth is an adequate basis to establish their age. [ 109 ] Both girls are clearly engaged in a variety of explicit sexual activities. I also note that any sequences that depict topless nudity meet the criteria for s. 163.1(1) (a)(ii): R. v. R.R.K.; R. v. K. (R.R.) , 2010 ONSC 330 , 251 C.C.C. (3d) 272 . [ 110 ] I conclude that the video recordings except for Recordings 4 and 24 are child pornography. B.

Making Child Pornography [ 111 ] “ Making ” child pornography is prohibited by Criminal Code , s. 163.1(2): 163.1(2) Every person who makes , prints, publishes or possesses for the purpose of publication any child pornography is guilty [of an offense] ... [Emphasis added.] [ 112 ] I agree with Justice Manderscheid ’ s conclusion in R. v.

Keough , 2011 ABQB 48 at para. 232 , 501 A.R. 26 that “ making ” child pornography requires the “ ... creation of novel child pornography, that is, an instance of child pornography that is different from existing instances. ” The video recordings here are “ novel ” child pornography. [ 113 ] The question which remains is who made that child pornography? Interestingly, the parties did not identify jurisprudence which examines the potential scope of that category. 1. Barabash - the ‘ Recorder ’ [ 114 ] There is little dispute that a ‘ recorder ’ makes child pornography.

Similarly, a person who directs or controls production of novel child pornography is a ‘ maker ’ : R. v. Hewlett , 2002 ABCA 179 , 312 A.R. 165 . Application of even a narrow

interpretation of the word “ making ” still has the result that Barabash made child pornography when he operated the web camera and gave direction to the other three participants. [ 115 ] Barabash is seen in the videos and heard on the audio tracks. He was identified by D. and K. and described as acting in those roles. On that basis I am satisfied beyond a reasonable doubt that Barabash made child pornography. 2. Participants in sexual activity

[ 116 ] Rollison ’ s role, however, is principally as a participant in the sexual activities, rather than a person recording or directing those sexual activities. There is little question from the video recordings that he must have been aware that his activities and participation were being recorded. [ 117 ] The Crown alleges that Rollison also handled the camera and gave directions. My review of the video recordings does not substantiate that claim. [ 118 ] If a broad

interpretation is given to “ making ” then Rollison made child pornography as a participant in the sexual activities. The Crown takes the position that participation of that kind is a basis for a Criminal Code , s. 163.1(2) conviction. [ 119 ] However, that proposition would logically lead to the conclusion that the complainants K. and D. also “ made ” child pornography via their participation in the sexual activity. Further, the recordings indicate that, from time to time, the two complainants handled and directed the web camera.

K. and D. can also be heard commenting on and directing some of the sexual activities. I have previously concluded these activities were voluntary, and the complainants clearly knew that the sexual activities and nudity were being recorded. That would suggest that K. and D. are best described as ‘ unindicted co-accused ’ . [ 120 ] The Crown was asked for a principled basis why Rollison “ made ” child pornography but K. and D. did not. Crown counsel ’ s argument, as I understand it, is that as a consequence of their age K. and D. were victims of the offense, rather than its participants .

Thus, their activities could not attract criminal sanction. I believe that the Crown ’ s suggestion is that a recording of a teenager ’ s sexual activity is always child pornography, but that as “ victims ” any underaged participant is not criminally liable. [ 121 ] While I believe that a broader definition of “ making ” is appropriate, and that participants in recorded sexual activities can offend Criminal Code , s. 163.1(2), I see no basis for the distinction based on age made by Crown. [ 122 ] First, this principle is no way reflected in the Criminal Code child pornography provisions.

There is no limitation by age on who can be guilty of these offenses. Parliament could have ‘ immunized ’ young persons from prosecution with a provision analogous to the Criminal Code , s. 150.1(3) rule that a young person aged 12 or 13 who is not in a position of trust cannot be tried for certain sexual offenses. I conclude that the absence of a s. 150.1(3) analogue for young persons who make or possess child pornography is a very clear indication that Parliament intended that persons under 18 are potentially subject to criminal liability in matters of child pornography . [ 123 ] Second, in R. v.

Sharpe McLachlin C.J.C. identifies the “ private use ” exception as a Charter -based rule for why persons under the age of 18 who record their nudity or sexual activities should not be subject to criminal sanction for creation of child pornography. The Chief Justice provides a number examples of the kinds of recording which fall into the private use exception, for example at para. 76: The second class of material concerns privately created visual recordings of lawful sexual activity made by or depicting the person in possession and intended only for private use.

Sexually explicit photographs taken by a teenager of him- or herself , and kept entirely in private, would fall within this class of materials. Another example would be a teenaged couple's private photographs of themselves engaged in lawful sexual activity. [Emphasis added.] [ 124 ] If the Crown is correct and the Criminal Code provisions mean, in their pre - R. v. Sharpe form, that teenagers cannot make child pornography by virtue of their age, then there would be no need, in these examples, for a constitutional exception for those teenagers.

I therefore conclude that the Crown is incorrect and that Criminal Code , s. 163.1(2) applies to any person who voluntarily and knowingly participates in sexual activities that are recorded, and which meet the Criminal Code , s. 163.1(1)(

a) child pornography definition. [ 125 ] I am also unclear on how the Crown’s proposed ‘blanket’ immunity to persons under age 18 who participate in recorded child pornography could rationally apply where two persons under age 18 made child pornography in circumstances where the sexual activity is unlawful and therefore falls outside the R. v. Sharpe scheme. Would these young persons remain immune to prosecution? That would seem strange, for example, where one young person paid the other to produce a record of nudity or sexual activity.

[ 126 ] R. v. Sharpe indicates that both ‘ participants ’ and ‘ recorders ’ make child pornography. At para. 116 Justice McLachlin describes the persons who may legally possess private use materials as “ ... the creator and the persons depicted therein. ” [emphasis added]. That indicates there is no difference between persons who engage in the sexual activity and those who record those activities. [ 127 ] In R. v. Keough , Justice Manderscheid calls this class of persons “ owners ” , which I think is a useful term. Owners are immunized from criminal liability via the R. v. Sharpe private use exception.

Logically, if immune via the Charter exception, the owners must otherwise have been potentially liable. [ 128 ] The Criminal Code , s. 163.1(2) “ making ” child pornography offense includes both persons who record nudity or sexual activity, and to the persons recorded. I therefore conclude that the Crown has proven beyond a reasonable doubt that Barabash and Rollison made child pornography in breach of Criminal Code , s. 163.1(2). C. Possession of Child Pornography [ 129 ] The video recordings were recovered from Barabash ’ s computers and the two DVDs recovered from his residence.

Possession is proven where a person has knowledge of and control over an illegal material: R. v. Terrance ; R. v. Kocsis . Here there was no serious dispute that Barabash was in possession of the video recordings. [ 130 ] On that basis the Crown has proven beyond a reasonable doubt that Barabash was in possession of child pornography in breach of Criminal Code , s. 163.1(4). D. Rollison Reasonably Investigated the Ages of the Complainants 1. The submissions of the parties [ 131 ] In his closing arguments, Rollison argues that he had no basis to believe that either D. or K. were under 18 years of age.

He notes they looked like adults and says in their testimony admitted that they routinely lied and said they were adults. In written submissions Rollison argues that their demeanor is of a kind that indicates they are adults: Anyone looking at the video would conclude that these two females were somewhere between 19 and 24 or 25. They are sexually mature and well endowed. They are very much in control of the show. Their demeanor, actions, and physical appearance, as well as their sometimes almost jaded approach to the entire performance, suggests strongly that they are bored sex trade workers.

They simply do not look, act, or hold themselves out to be under 18. [ 132 ] All this relates to an argument that Rollison never intended to engage in recorded sexual activities with someone under 18 years of age. He clearly had the mental intention, or mens rea , to participate in recorded sexual activities, just he merely never intended to do so with anyone under age 18. [ 133 ] Criminal Code , s. 163.1(5) relates specifically to this kind of argument, and requires a person charged with making child pornography to take “ ... all reasonable steps to ascertain the age of that person ... ” [emphasis added].

The Crown notes that one of the video recordings includes a conversation between Barabash and D. where D. explains she is 14 years old and can consent to sexual activities, and that on other occasions both D. and K. indicated their age, 14, to the co-accused Barabash. D. also said they told people they were 17 or 18 at various points, information that may have been available to Rollison. Counsel for Rollison responds that there is no evidence he was told D. and K. ’ s age, nor that he heard D. ’ s recorded statement of her age to Barabash. 2. The law

[134] Counsel did not cite any authority on how s. 163.1(5) should be interpreted and applied, and my review did not identify anyreported decision that comments on this specific point. That said, the language in s. 163.1(5) closely resembles a number of otherCriminal Code provisions that address the obligation of an accused to investigate the age of a sexual partner.

Criminal Code, ss. 150.1(4)and 150.1(5) state: It is not a defence to [various age-dependant sexual misconduct and prostitution offenses] that the accused believed that the complainantwas [16 or 18] years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable stepsto ascertain the age of the complainant. [Emphasis added.] [135] Similarly, Criminal Code, s. 150.1(6) requires that an accused cannot argue mistaken belief of age in relation to consensualsexual activities with a person between the age of 12 and 16 “unless the accused took all reasonable steps to ascertain the age of thecomplainant.” [136] The more recent Criminal Code, s. 172.1 ‘luring a child’ offense also has closely related provision: 172.1(4) It is not a defence to a charge [of sexual luring] that the accused believed that the person referred to in that paragraphwas at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps toascertain the age of the person. [Emphasis added.] [137] The s. 150.1 provisions have been the subject of considerable judicial commentary.

I believe the purposes of ss. 150.1(4)-(6),172.1(4) and s. 163.1(5) are closely related and that I may rely on case law that relates to ss. 150.1(4)-(6), 172.1(4) to assist in myinterpretation of s. 163.1(5). [138] The leading case which interprets Criminal Code, s. 150.1(4) is R. v. Osborne (1992), (NL CA), 102 Nfld.& P.E.I.R. 194, 17 C.R. (4th) 350 at 359-360 (Nfld. C.A.). This

section provides a defence, in that “[i]t is only necessary that theevidence raise a reasonable doubt.” Goodridge C.J.N. continues by observing: A cautionary note should be expressed for those who seek to establish such a defence. The evidentiary onus is to show evidence thatestablishes that the accused took all reasonable steps to ascertain the age of the complainant. The common law defence of honest beliefhas thereby been restricted to those entertaining an honest belief who have taken all reasonable steps to ascertain the true age.

The word"all" is important and, while it is only necessary for an accused to create a reasonable doubt, the evidence which he uses to establish suchdoubt must be directed to the word "all" as much as to any other part of the subsection. [Emphasis added.] [139] The scope of that obligation is high: ... Parliament requires more than an honest belief; it requires a belief resulting from the taking of "all reasonable steps to ascertain theage of the complainant".

Parliament made the act a crime and expects of citizens engaging in sexual activity with young people to makea reasonable effort to ascertain the age of prospective partners. It is more than a casual requirement. There must be an earnest enquiry orsome other compelling factor that obviates the need for an enquiry. An accused person can only discharge the requirement by showingwhat steps he took and that these steps were all that could be reasonably required of him in the circumstances.

It is not sufficient, forexample, to state that further enquiries were not made because they would open the accused to ridicule, embarrassment or rejection.[Emphasis added.] [140] In R. v. Slater, 2005 SKCA 87, 269 Sask. R. 42 at para. 29 Jackson J.A. provided a list of potentially relevant indications ofapparent age: … Some indicia are: (

a) the complainant’s physical appearance;

(

b) the complainant’s behaviour; (

c) the ages and appearances of those in whose company the complainant has been found; (

d) the relevant activities; (

e) the times, places and other circumstances in which the accused observed the complainant and the complainant’s conduct. [141] In relation to Criminal Code, s. 172.1(4), Berger J.A. in R. v. Levigne, 2009 ABCA 359 at para. 16, 464 A.R. 200, affirmed2010 SCC 25 [2010] 2 S.C.R. 3 explained the ‘objective’ nature of this question: 16 The requirement for "reasonable steps" in subsec. (4) injects an objective standard into the analysis. In order to qualify asevidence to the contrary, the proffered evidence must: (

a) be based on objectively reasonable steps taken by the accused: see R. v. Osborne (1992), (NL CA), 102 Nfld. &P.E.I.R. 194, 17 C.R. (4th) 350 (Nfld. C.A.) at para. 62, and (

b) be believed by the trier of fact. Evidence that is not believed cannot rebut the statutory inference in subsec. (3) as that would renderthe statutory inference meaningless. That evidence need not come from the accused, but it must at least have a threshold of believabilityso as to be legally capable of raising a reasonable doubt. [Emphasis added.] [142] I conclude the correct approach to Criminal Code, s. 163.1(5) applies the same principles. Rollison can only avoid criminalliability if he: 1. can identify objectively reasonable and more than casual steps to establish D. and K. were 18 or older by:

a) direct inquiry, or

b) compelling factors that obviates the need for an inquiry, 2. those steps are “all reasonable steps” to establish the age of D. and K., and 3. that the evidence of these objectively reasonable steps are sufficiently believable that the evidence raises a reasonable doubt. 3. Analysis [143] The evidence before this Court does not indicate that Rollison took any direct steps to establish the age of the complainants.Rollison did not testify on that point and provide any basis on which he concluded D. and K. were over 18 years old. [144] Barabash clearly knew K. was 14 years old, which he states as a fact in Recording 23. Barabash was told K.’s date of birth in

Recording 25. There is no evidence that Barabash told Rollison K’s age. [145] If Rollison did hear the exchange between D. and Barabash that she was able to consent to sexual activity then it would beobjectively reasonable for Rollison to make further inquiries as to D.’s age. A statement by a person that they are under 18 in thesecircumstances warrants direct investigation. [146] In the absence of any direct inquiry as to the complainants ages, Rollison must identify “compelling factors that obviate theneed for an inquiry”.

I can identify two possible ‘indirect factors’ from the argument advanced by Rollison’s counsel: 1. the complainants physically looked and acted like they were over 18, and 2. their conduct was that of “bored sex trade workers”. [147] R. v. Mastel, 2011 SKCA 16, 366 Sask.R. 193 provides an example of where an accused took no steps to establish a 15 yearold female was 16. That accused knew the complainant drank, purchased cigarettes, had a job and drivers license, and had experiencewith sexual acts. She appeared older than her age.

The Saskatchewan Court of Appeal ruled the trial judge had committed a palpable andoverriding error when deciding that the ‘indirect evidence’ provided a reasonable basis for the accused to not directly inquire as to thecomplainant’s age. [148] Previously that court in R. v. Slater, concluded that an accused had not met his obligation to make all objectively reasonableenquiries to determine the age of a number of child sex workers, all of whom had an extensive history of that activity.

Many abuseddrugs and some appeared older than their chronological age. [149] Indirect evidence can be a foundation to conclude that an accused took all reasonable steps to determine the age of a person.For example in R. v. Quintanilla (1999), 1999 ABQB 769 , 251 A.R. 59, 28 C.R. (5th) 186 (Alta. Q.B.) Belzil J. concluded thata bartender who engaged in sex with a 12 year old customer had met the “all reasonable enquiry” threshold.

The complainant and her 15year old sister had lied to bar personnel to access the bar, were physically mature for their age, and had dressed to appear older than theywere (paras. 115-116). The sister was a frequent customer of the bar and appeared to be a friend of a number of the other bar employees.Justice Belzil concluded that it was not unreasonable for the bartender to presume that the young person was 14 or older, particularlygiven her presence in the bar and apparent familiarity with drugs and alcohol (para. 117). [150] The Barabash home had no associated age restriction.

It seems from the evidence of the complainants that this was a drughouse through which a wide number and range of persons passed, joined principally by their drug use and dealing. K. and D., as visiblein the video recordings, do appear potentially to be significantly older than their chronological ages, however the critical age here is not14 but 18, and I conclude that their appearances do not preclude the objective possibility of their being under 18 years of age. [151] That they drank and used drugs means little. Neither is a clear indication a person is an adult.

The complainants’ otherassociations are a neutral factor. I have little information on their nature one way or another. [152] What remains is the contention that K. and D.’s sexual conduct indicates they are “bored sex workers” and therefore adults.There are three issues with that argument. First is the unfortunate fact that not all sex workers are adults. Second, R. v. Slater clearlyindicates that a person cannot reasonably conclude an individual is an adult on the basis that the person is a sex worker. [153] Third, familiarity with sexual activities is a poor basis to conclude a person is over the age of 18.

Parliament has made it legalfor persons under age 18 to engage in sexual activity, and indeed many do. Apparent sexual experience may be relevant to determine theobjective apparent age of persons significantly younger than 18 years, but I disagree that a judge can say that an accused had noobligation to inquire as to the age of a young appearing person simply due to that person’s apparent sexual experience. 4. Conclusion - requirement to investigate age

[ 154 ] I therefore reject Rollison ’ s defence that he took all reasonable steps to establish the age of K. and D. At best he was told that the two young women were 17 or 18 years old. That knowledge would warrant direct and further inquiry. If Rollison had heard nothing about the age of the complainants then he could not simply rely on their appearance, drug and alcohol use, demeanor, and sexual conduct to discharge his legal obligation to take “ all reasonable steps ” to establish that D. and K. were adults. E. Private Use Status as a Defence [ 155 ] The Supreme Court of Canada judgment of R. v.

Sharpe identifies the category of private use material but does not explain how that constitutional exception should operate in a criminal trial context. In short, R. v. Sharpe does not suggest a procedure to apply the private use exception. [ 156 ] The first and apparently only reported case to examine how the R. v. Sharpe private use exception operates is the recent R. v. Keough decision of my brother judge Manderscheid J. At paras. 295-303 of R. v. Keough , he concludes that the exception operates as a legal defence.

To take advantage of this defence an accused must raise the private use character of the materials and provide or point to evidence in the trial which makes out an “air of reality” in respect to that claim (para. 300-301). If the “air of reality” threshold is met then the Crown must disprove an element of the private use defence beyond a reasonable doubt (para. 301). [ 157 ] Both Accused agreed that is the correct approach. The Crown did not take a position on the appropriate procedure for a criminal court to address the R. v.

Sharpe Charter exception for private use materials, but rather argued that the private use exception is not applicable in the present case. [ 158 ] I agree with and adopt the approach in R. v. Keough to the private use exception and will therefore now conduct a ‘conventional’ R. v. Cinous , 2002 SCC 29 , [2002] 2 S.C.R. 3 type defence analysis. While this is a two-step procedure, I will, for convenience, in certain instances combine those two steps when assessing certain of the private use defence components. [ 159 ] The first step is to determine the elements of the R. v.

Sharpe private use materials defence, and as a consequence the characteristics of the Charter protected legal private use materials. F. The Scope of the R. v. Sharpe Private Use Exception [ 160 ] A very interesting aspect of this case is that the Court has been asked to investigate whether the video recordings are a recording of sexual activities of a teenager that should fall within the R. v. Sharpe private use category. This means I must determine the characteristics of a private use recording, and whether these video recordings meet those criteria. [ 161 ] At para. 128 of R. v.

Sharpe , McLachlin C.J.C. summarizes the conclusions of the majority. Points six to eight address the constitutional exceptions in the Criminal Code , s. 163.1 child pornography offenses that are required by the Charter as follows: 128 I would summarize my conclusions with respect to s. 163.1(4) in general terms as follows: … 6. The guarantees provided in ss. 2(

b) and 7 of the Charter require the recognition of two exceptions to s. 163.1(4) , where the prohibition’s intrusion into free expression and privacy is most pronounced and its benefits most attenuated: (

a) The first exception protects the possession of expressive material created through the efforts of a single person and held by that

person alone, exclusively for his or her own personal use. This exception protects deeply private expression, such as personal journals and drawings, intended solely for the eyes of their creator. (

b) The second exception protects a person ’s possession of visual recordings created by or depicting that person, but only where these recordings do not depict unlawful sexual activity, are held only for private use, and were created with the consent of those persons depicted . 7. These two exceptions apply equally to the offence of “making ” child pornography under s. 163.1(2) . 8.

Neither exception affords protection to a person harbouring any other intention than private possession; any intention to distribute, publish, print, share or in any other way disseminate these materials will subject a person to the full force of s. 163.1 . [Emphasis added.] [ 162 ] Read simply, the exception enumerated in point 6(

b) of para. 128 has three components, namely a valid private use recording must be: 1. of legal sexual activities, 2. made with the consent of the persons depicted, and 3. held for “private use”. I note that there is no mention in the

summary of any other criteria beyond these three items. [ 163 ] Here, the difference in position between the Crown and defence may be reduced to a simple question: whether all private use material must possess aspects of “self-fulfilment and self-actualization” ( R. v. Sharpe , at paras. 109, 120 ) and not result in “exploitation or abuse of children” ( R. v. Sharpe , at para. 116 ).

This inquiry goes beyond whether the recorded activities are legal, consensual, and private , and instead requires investigation of the quality and meaning of those recorded activities. [ 164 ] The Crown argues that the video recordings in this case are of a kind that was never meant to fall into the R. v. Sharpe private use category.

The Defence argues that if the recordings meet the paragraph 128 criteria, and even if the contents of and circumstances surrounding production the video recordings are disturbing or distasteful, that, alone, is not a basis for those materials to fall outside the private use category. The Accused submit the critical question is whether the video recordings are of legal sexual activities. [ 165 ] First, I will address whether the sexual activities recorded here are legal. 1. Legal sexual activities [ 166 ] The sexual activities depicted in the videos are many and varied.

However, the Crown agrees that none of the depicted sexual activities were illegal at the time the recordings were created in March/April of 2008. [ 167 ] Both K. and D. were 14 at the time and legally could consent to sexual activity: Criminal Code , s.

Section 151 was amended on May 1, 2008 to make sexual touching of any person under age 16 illegal, with limited exceptions for consensual sexual

activity among young persons of similar age: Criminal Code, ss. 150.1(2-3). If the recording had been made two months later, and giventhe apparent age of Rollison, the video recordings would have depicted illegal sexual activity and therefore fall outside the R. v. Sharpeprivate use exception. [168] There is some indication of what may be anal intercourse activity among the participants. Anal intercourse is generallyprohibited and an offense via Criminal Code, s. 159. Section 159(2)(

b) prohibits anal intercourse where a participant is under 18 years ofage. This restriction has been identified as unconstitutional: R. v. C.M. (1995), (ON CA), 23 O.R. (3d) 629, 82 O.A.C.68 (Ont. C.A.). Similarly, s. 159(2) permits anal intercourse only where persons are “in private”; s. 159(3) deems that anal intercoursedoes not occur in private if the act occurs when more than two persons are involved or present. This limitation was ruled unconstitutionalby Veit J. in R. v. Roth, 2002 ABQB 145, 306 A.R. 387. I agree with the reasoning and conclusions in these decis

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