NEWS

Edmonton child-porn case: Supreme Court orders new trial

05/22/2015 09:38 EDT | Updated 05/22/2016 05:59 EDT
Two Edmonton men convicted last year of making and possessing child pornography will get a new trial, after the Supreme Court of Canada overturned the lower court ruling.

Donald Jerry Barabash and Shane Gordon Rollison were convicted in 2014 by the Alberta Court of Appeal of making child pornography with two 14-year old girls.

In its unanimous ruling, released Friday, the Supreme Court said the judge at the new trial must consider the issue of exploitation in deciding whether the so-called "private use exception" applies in this case.

The top court ruling also found that the exception must include a provision to cover child exploitation.

Two girls were runaways from a treatment centre.

In early 2008, they stayed for a few weeks with Barabash, 60, in his home. Rollison, 42, was a regular visitor there.

The girls were involved in sexual activity with each other, and with Rollison. Videos were made and photographs were taken. At the time, 14‑year‑olds could legally consent to sexual acts with adults.

The age of consent was raised from 14 to 16 on May 1, 2008.

Both Barabash and Rollison were charged with making and possessing child pornography.

At their trial in 2012, the judge found that all of the elements of the offences had been established.

But defence lawyers for the accused raised the "private use exception," and the judge concluded that the Crown had failed to disprove the exception beyond a reasonable doubt.

The Crown appealed the decision, and in April 2014 the Alberta Court of Appeal, in a 2-1 split decision, overturned the lower court and found the men guilty.

The "private use exception," based on 2001 Supreme Court ruling, requires a determination that the sexual activity depicted in recordings is lawful, that it was consensual and that the recordings were held exclusively for private use.

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