Shane Gordon Rollison v. Her Majesty the Queen

(Alberta) (Criminal) (As of Right)

(Publication ban in case)




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Criminal law - Making child pornography - Private use exception - Application of R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, and R. v. Cockell, 2013 ABCA 112 - Whether the trial judge properly interpreted the “private use exception” contemplated in Sharpe.

The appellant was acquitted of one count of making child pornography in relation to two teenage girls. The Crown appealed the acquittal, arguing among other things that the trial judge erred in law in his interpretation and application of the “private use exception” to the offences. Applying the Alberta Court of Appeal decision in Cockell, a majority of the Court of Appeal allowed the appeal and entered a conviction for both offence. Berger J.A., dissenting, would have dismissed the appeal. In his view, to the extent that Cockell interpreted Sharpe to mean that separate and apart from the lawfulness or otherwise of the sexual activity in question, the evidence must show (and the accused must point to facts that establish) that a complainant’s consent was obtained in circumstances precluding exploitation or abuse, it was wrongly decided. Accordingly, Berger J.A. found that the “private use exception” was made out in this case and that the acquittal should stand.

Lower Court Rulings

February 14, 2012
Court of Queen’s Bench of Alberta

Appellant acquitted of one count of making child pornography contrary to s. 163.1(2) of the Criminal Code
April 3, 2014
Court of Appeal of Alberta (Edmonton)

Appeal allowed