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.”