Two Edmonton men were acquitted of offences of making and possessing child pornography because the trial judge accepted that the material, involving two runaway teenage girls, was made for the men’s private use. The Supreme Court of Canada ordered new trials for the men, ruling that s. 153 of the Criminal Code, which makes sexual exploitation of young people a crime, should have been examined. Judges must look at whether the sexual activity occurred in the context of an exploitative relationship. If so, the sexual activity is not lawful and the private use exception does not apply. It found that the trial judge looked at the voluntariness of the activity instead of the relationship between the parties. In addition, the trial judge should have considered a whole range of factors such as age, the difference in age between the girls and the accused, the impact of the girls’ addiction, their need for shelter, and their past and ongoing experiences with homelessness and prostitution. The Court concluded: “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.”
R. v. Barabash, 2015 SCC 29 (CanLII)
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