Canada Supreme Court Orders New Trial in CP Case

Rhett Pardon

OTTAWA — Canada's Supreme Court has ordered a new trial for a man charged with possessing child pornography after he professed to have the material because he wanted to raise awareness.

In his defense, defendant Robert Katigbak said he possessed the child porn because he was going to create an educational and artistic exhibit on the effects of child porn and sexual abuse on children.

The trial judge acquitted Katigbak but an appeals court ruled the trial judge erred regarding the amendment and convicted him.

The case, known as R. vs. Katigbak, involves a statutory defense to child pornography found in the federal Criminal Code as it existed before and after its amendment in 2005.

The Supreme Court ruled Thursday that the trial judge made errors of law regarding both versions of the Criminal Code known as s. 163.1(6).

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 18 years.”

The court found fundamental flaws in the trial judge's rulings.

"First, she erred by finding that the pornographic material fell within the scope of the pre-2005 artistic merit defense on the ground that [the defendant] 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,” the ruling said.

“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.”

The Supreme Court said in its ruling that when presented with child pornography defenses, it is a challenging balance between “the importance of freedom of expression and the need to protect children from abuse.”

"The social interests at stake in relation to child pornography offences are not all the same and the importance of the public interest is not identical," the court said. "Thus, the nature and scope of the defense must be consistent with the nature of the crime itself. Without downplaying its seriousness, possession can entail a lesser risk to the public and to children than the making and distribution of child pornography." 

Tim Henning, ASACP's executive director, told XBIZ that he agreed with the Supreme Court's decision in the case.

"The artistic merit and legitimate purpose defence is only valid if it can be proven by the defense that the content and the defendants purpose meets the criteria to claim such defences, which was not the case here," he said. "I also agree that the Court of Appeal did not make the necessary findings of fact for a conviction and a new trial must be set.

"If this had happened in the U.S., it would not be possible to have a second trial as double jeopardy laws would prohibit it and the first aquittal decision would stand. However, Canadian law does allow the Crown to appeal from an aquittal. The new trial does not constitute double jeopardy because the first trial has been annulled."

"This is a prime example of why child pornography laws in the U.S. provide for fewer defenses for possession of child pornography. As the Supreme Court of Canada points out, when presented with child pornography defenses it is a difficult balancing act."