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SCC direction on 'consent' would be helpful: Neuberger

Further direction is needed from the Supreme Court of Canada to help determine the evidence required to demonstrate that consent is provided in circumstances precluding exploitation or abuse, Toronto criminal lawyer Joseph Neuberger tells Lawyers Weekly.

He makes the comment following an Alberta Court of Appeal decision that overturned the acquittal of two Edmonton men who had videotaped their sexual encounters with a pair of 14-year-old girls. The men have been found guilty of making child pornography.

“I think this case has not made it clearer and we need a little bit more clarification to the application of the exception,” Neuberger tells Lawyers Weekly.

The article says that Donald Barabash, 66, and Shane Rollison, 47, were charged in connection with about 10 hours of of video created in March and April 2008, after the two young girls ran away from a drug treatment centre and stayed at Barabash’s home for several weeks.

The girls used the house for sleeping, eating and consuming drugs allegedly provided by the respondents or unidentified “boyfriends," says the appeal decision.

Lawyers Weekly says one of the girls posted a photo on the Internet and this led to a police investigation, which resulted in charges against the men.

During the trial, Alberta Court of Queen’s Bench Justice D.R.G. Thomas found the girls were willing participants in the recorded sexual activity, which occurred prior to legislation that raised the age of consent from 14 to 16 years, says the article.

The judge acquitted the two men, ruling that the Crown had failed to disprove the “private use exception” established by the Supreme Court of Canada in R. v. Sharpe. That exception provides constitutional protection to recordings or depictions of lawful sexual activity that are privately held by individuals who consensually participated in or recorded the activity, says Lawyers Weekly.

In a 2-1 decision in R. v. Barabash, the Court of Appeal ruled that Barabash and Rollison couldn’t rely on that exception to defend against the charges. It states that the standard isn't met in an exploitive situation and points to the unlawfulness of their conduct "to instruct these runaway and highly vulnerable and deprived children to conduct themselves for the sexual entertainment of those two men."

The judgment states that: “It may well be that the children had no objection to performing sexually for these two adults who provided their temporary shelter, food supply and location to use drugs (howsoever acquired). Certainly Barabash, and in real terms both respondents, were in control of their environment, albeit temporarily. The absence of obvious violence or coercion is, under the circumstances here, insufficient to constitute the Sharpe exception."



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