A Toronto trial judge was mistaken when she accepted a man's claim to have spent seven years collecting images of children being sexually assaulted as part of a legitimate art project, the Ontario Court of Appeal ruled yesterday.
The Court took the usual step of overturning 32-year-old Robert Katigbak's 2008 acquittal, substituting a conviction for possession of 628 images and 30 video clips of children and babies being sexually assaulted.
In a 3-0 decision, the Court said that very few defendants can hope to evade child-pornography convictions using a defence of artistic merit - and it was painfully obvious that Mr. Katigbak did not deserve to be one of them.
The Court excoriated Madam Justice Louise Botham, of the Ontario Court of Justice, for focusing so closely on freedom of expression that she neglected to consider the horrendous ordeal the children depicted in the images suffered.
Judge Botham also misstated conclusions reached by the Supreme Court of Canada in a landmark child pornography ruling in 2001 - Regina v Sharpe - the appeal court said.
"Trial judges must take a hard look at the facts when the 'legitimate purpose' defence is put forward," it said. "Duelling and important societal interests are at stake. Trial judges must be careful not to be drawn easily into accepting beguiling explanations - wrapped in the compelling trappings of freedom of thought and expression - that on their face may evoke some connection to an otherwise commendable goal.
The judges agreed with Crown counsel Christine Bartlett-Hughes that, rather than being an artist who aspired to create an ambitious project that would cause viewers to reflect on sexual violence against children, Mr. Katigbak was an unrepentant child-porn enthusiast.
Mr. Katigbak, a psychology graduate, worked for several years at Japan Camera and Pentax Canada before being laid off. On April 19, 2006, he was arrested at his home and his computer was seized and searched.
"There were images of children engaging in sexual activity with other children," wrote Mr. Justice Robert Blair, Mr. Justice Michael Moldaver and Madam Justice Janet Simmons. "There are images of adults - both male and female - engaging in such activities with children.
"There are images of penetration of children, including babies, both anally and vaginally, and of children posing in various forms of genital exposure...Suffice it to say, they are repulsive in the extreme to anyone who cares about children and the protection of children."
Mixed in amongst those computer images were 46,000 images of adult pornography which Mr. Katigbak told police were for his "personal entertainment."
Mr. Katigbak also explained to police that he had been collecting the child porn images for the past seven years as he slowly evolved his artistic plans.
In reality, Mr. Katigbak had gotten no further than a few scratchings in some notebooks. They indicated that he would install his display in a dark gallery, with children's choirs and children singing nursery rhymes in the background, and that he intended to purchase children's dolls and child mannequins as part of the display.
"His ultimate goal was to create a gallery exhibition that would present the issue of child exploitation and pornography from the perspective of the exploited child," the judges said. "Collecting child pornography, he said, would allow him to determine what kind of child pornography 'was out there' and to explore his own emotional response to viewing the material."
However, the Court noted that there was no need for Mr. Katigbak to assemble such a vast collection over a seven-year period, since a few hours spent on the Internet would be sufficient for him to assemble a similarly-large collection of child porn if he ever became truly serious about creating a display.
The Court said that in order to qualify for the artistic merit defence, an act must have a legitimate purpose related to the administration of justice or to science, medicine, education or art. It must also not pose 'an undue risk of harm to persons under the age of 18 years.' "On the totality of the evidence here … it seems to me that a reasonable observer would have little difficulty rejecting the respondent's expressed purpose or intention as unreasonable," the judges said.