(from canoe.ca)
I wonder what Vic Toews would have to say about this verdict?
EDMONTON - Two Edmonton men who had videotaped sex with a pair of 14-year-old girls were acquitted Tuesday of child porn charges after a judge ruled the tapes were for private use.
Donald Barabash, 63, and Shane Rollison, 45, were both found not guilty of making child porn and Barabash was also found not guilty of possessing child porn.
Court heard the two men and the two girls - described as sexually active, drug-using runaways - willingly participated in the videotaping of various sexual activities at an inner-city home in late March and early April of 2008.
Interestingly, the alleged offences happened the month before Parliament raised the age of consent from 14 to 16.
Judge Denny Thomas concluded the video recordings were child pornography as the two girls were both under the age of 18 at the time and therefore both Barabash and Rollison had made child porn.
Thomas also concluded Barabash was in possession of child porn as the sex tapes were found in his home.
However, he accepted the defence of private use exception which stems from a controversial 2001 Supreme Court decision in which a B.C. man was acquitted of child porn possession based on the fact the material did not depict unlawful sex acts and was for private use only.
Thomas ruled the recorded sexual activity was legal, the recording was in the control of the person who had recorded it and all of the participants in the recording were aware of and consented to the recording.
The Crown had argued the private use exception should not apply because it involves a situation involving the “exploitation or abuse of children” as a result of the age differences, the type of sex acts and the use of drugs.
“In my view, the Crown’s approach can be fairly summarized as being that an evaluation of the entire scenario in which the video recordings were generated reveals a kind of conduct that should be a target for criminal sanction,” said Thomas. “Many would probably agree.”
However, the judge added that would lead to a kind of a “taste test” where courts would have to determine which legal sexual activity does or does not qualify as child pornography when recorded.
Thomas said it would also create a “dangerous risk” to the very young adolescents whom the private use exemption was intended to protect.
“I see a real danger that an assessment in this manner could criminalize conduct by young persons, which is otherwise entirely legal, absent the presence of a camera,” he said.
“My conclusion is that the courts have only the most limited role to evaluate whether privately held recordings of a young person’s nudity or legal sexual activity are of a quality and kind that ought to be subject to criminal sanction as child pornography,” said Thomas.
Court heard police seized the sex tapes and charged the two men after an investigation triggered by one of the teens posting a picture on the social networking website Nexopia showing her biting the other teen’s naked breast.
