The Supreme Court of Canada has ordered a new trial for a man charged with possessing child pornography.

The case, R. v. Katigbak, revolves around the statutory defence to child pornography found in s. 163.1(6) of the Criminal Code as it existed before and after its amendment on Nov. 1, 2005.

At trial, Katigbak admitted that he possessed child pornography but he claimed he was going to create an educational/artistic exhibit with it to raise awareness of the effects of child pornography and sexual abuse on children. The trial judge acquitted Katigbak but the Ontario Court of Appeal ruled the trial judge had erred regarding the amendment and convicted him.

The current version of s. 163.1(6) states: “No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence (a) has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and (b) does not pose an undue risk of harm to persons under the age of eighteen years.”

Before the amendment it included a public good defence.

“In our view, the trial judge made errors of law regarding both versions of s. 163.1(6). First, she erred by finding that the pornographic material fell within the scope of the pre-2005 artistic merit defence on the ground that Mr. Katigbak possessed the material for an artistic purpose, notwithstanding the fact that the material itself had no artistic merit and was not created for one of the enumerated purposes,” says the Supreme Court’s decision.

“Second, she erred in her interpretation of the phrase ‘legitimate purpose’ in the current version of s. 163.1(6) by inquiring solely into the accused’s subjective purpose for possessing the material. In our view, Parliament’s use of the word ‘legitimate’ connotes its intention that the connection between the impugned activity and the stated purpose also be objectively verifiable.”

“In light of those errors, the Court of Appeal was correct to set aside the acquittal. However, in our respectful view, it erred in substituting a conviction. Because of the erroneous analytical framework applied at trial, the trial judge did not make the necessary findings of fact for an appellate court to find Mr. Katigbak guilty of the offence. Consequently, we would allow Mr. Katigbak’s appeal and order a new trial,” the ruling concludes.

The judges acknowledged that when presented with child pornography defences, it is a challenging balance between “the importance of freedom of expression and the need to protect children from abuse.”

Yesterday morning, six members of Ottawa’s legal community cut their hair at the third annual Locks for the Law event to make wigs for cancer patients.

Three years ago, Sybil Johnson-Abbott was returning to her job after being away on maternity leave and decided she needed a haircut. She realized it was long enough to donate it to charity, and wondered if some of her co-workers at Borden Ladner Gervais LLP’s Ottawa office would join her.

She was able to find five other women who were both willing to cut their hair and met the standards for hair donations: over 23 centimetres of hair they were willing to cut that had not been bleached or permanently dyed and contained less than five-per-cent grey. It takes six donations to make a wig, though some women with thick hair can make several donations.

Thus was born Locks for the Law, and it became an annual event hosted by BLG. Partnered with Pantene’s Beautiful Lengths charity, the hair donations will go to the Canadian Cancer Society and help to provide wigs for people who have lost their hair due to cancer treatment free of charge, says Johnson-Abbott.

“We definitely have enough for one wig, probably two, this year,” said Johnson-Abbott, looking at the row of brown, blonde, and black severed ponytails.

“It’s a renewable resource and can really make a difference in people’s lives,” she said. “It gives them a chance to look in the mirror and see themselves, and the strength to battle on. We’re really happy to be part of that.”

Photos: Catherine Lewis

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