In R. v. Barabash (2015), charges were brought against Barabash after it was discovered that he produced child pornography as well as possessed child pornography. The case decision was based on the analysis of ‘private use exception’. This private use exception states “1) the sexual activity must be legal; (2) the recording must be made with the consent of the persons depicted; and (3) the recording must be held for private use” (R v. Barabash, 2015, para. 10). An acquittal occurred based on the Sharpe (2001) case, as it was believed all three requirements were met. After examining the Cockell (2013) case however, it was decided that the appellants should be charged, as the judge erred in his decision by not further examining the third requirement set out in Sharpe (R v. Barabash, 2015, para. 11).
This case examines criminal law, as Barabash allegedly acted counter to section 163.1(2) of the Criminal Code RSC 1985 C-46 in the production of child pornography and counter to section 163.1(4) of the Criminal Code as he was in possession of child pornography (R v. Barabash, 2015, para. 1). The argument was pursued in the Sharpe case that this section of the Criminal Code was an infringement upon section 2(b) and was justified under section 1 of the Charter (R v. Sharpe, 2001, para. 4). This test is a universal standard, which produces uniform decisions in similar cases. The test consists of two steps: the law must be both pressing and substantial as well as a proportionality analysis that is subdivided into three categories (rationally connected, minimal impairment, and proportionate effects) (R v. Oakes, 1986, para. 70).
Based on R v. Butler (1992), pornography is considered obscene material if “crime, horror, cruelty, or violence” occur (para.19). In Barabash, this definition shows that the pornographic material in question should be considered illegal as it depicts a crime as exploitation rather than a consensual act. The two girls were on drugs, which would impair their decision making. The girls were in a situation where they had to stay with these men to be hidden so they had no control over the situation and had to obey orders. The activity was therefore made unlawful without proper consent and could not constitute as private use materials.
R v. Sharpe (2001) set the precedent for this case in that it examined whether possession of child pornography under section 163.1 (4) of the Criminal Code violated section 2 of the Charter of Rights and whether it could be saved by section 1 of the Charter (para. 4). There are two constitutional exemptions that allow the possession of child pornographic materials (R v. Barabash, 2015, para. 16). In particular, it is questioned whether the second exemption of ‘private use exception’ was used correctly in the case of Sharpe and whether the meaning should be amended for Barabash. R v. Sharpe (2001) challenged the broad encompassing definition of child pornography so it would not include all types of material depicting children. It allowed for personal material to become legal, but then created a legal debate on what conditions and materials constitute as private materials that are considered legal within the case of Barabash. In Sharpe, it was decided that ‘self-fulfillment’ was significant to private recordings to allow for those of consenting age to exercise their rights (R v. Sharpe, 2001, para. 24). However, at 14 years of age, puberty may have just begun, therefore, with an adolescent mindset, the girls do not know what is good for them and should not be experimenting with men old enough to be their father. The age of consent was raised from 14 to 16 years old with the age range exceptions to reflect the maturity and general population’s wishes (R v. Barabash, 2015, para. 22-23).
R v. Cockell (2013) allowed for the examination of whether or not Barabash used the child pornographic materials in a private manner. In Cockell it was decided that the pornographic materials could not have been created by means of exploitation or abuse. In the case of Barabash, it was claimed that there would have been minimal harm inflicted on the two adolescents involved because they were considered to be damaged/troubled youth, as they were runaways. If the children were considered to be psychologically harmed, they would be a vulnerable sector that needs more protection. Just because the two children are spiraling down a path towards crime, does not mean they deserve less consideration or protection than any other child. The fact that the two adolescents were runaways should not affect the outcome of the decision.
Public Policy Issues
Legislation has since raised the age of consent from 14 years old to 16 years old with rules about age difference between sexual partners (close in age exception) for those under 18 years of age (R v. Barabash, 2015, para. 22-23). Public policy resulting from Barabash eliminated the need for self-fulfillment in Sharpe’s analysis, as it was not needed because it was covered within the third element (R v. Barabash, 2015, para. 10). Majority in the case decided that with the correct law applied sentences could be given to the appellants rather than dismissing the charges.
This situation presents the issue of whether the material was for private use of child pornography and the issue of consent. Both adolescents were of the legal age of 14 years old when they were consenting to sexual activity. However, these two adolescents were in treatment, therefore, they were more vulnerable than an average person their age. The girls had impaired judgement due to drugs and had nowhere to go so they were reliant upon Mr. Barabash and his friend to care for them. Therefore, the girls likely felt like they had to listen to Barabash and Rollison’s commands because Barabash and Rollison were the older individuals and therefore authoritative figures as they were caring for the girls. The men exploited the girl’s situation for their own personal gain rather than to protect them.
R. v. Barabash, 2015 SCC 29,  2 S.C.R. 522
R. v. Butler,  1 S.C.R. 452
R. v. Cockell, 2013 ABCA 112
R v Sharpe, 2001 SCC 2,  1 S.C.R. 45