R. v. Katigbak (R.), (2011) 283 O.A.C. 331 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 21, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 283 O.A.C. 331 (SCC);2011 SCC 48

R. v. Katigbak (R.) (2011), 283 O.A.C. 331 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2011] O.A.C. TBEd. OC.025

Robert Katigbak (appellant) v. Her Majesty The Queen (respondent) and Canadian Civil Liberties Association (intervenor)

(33762; 2011 SCC 48; 2011 CSC 48)

Indexed As: R. v. Katigbak (R.)

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

October 20, 2011.

Summary:

The accused was charged with one count of possession of child pornography when pictures and videos were found on his computer. The images were collected between 1999 and 2006. The accused admitted that the materials constituted child pornography, but claimed that his purpose in collecting the materials was to create an artistic exhibition exploring the sexual exploitation of children. He claimed that he was entitled to rely on the defence of artistic expression in s. 163.1(6) of the Criminal Code. The trial judge held that the accused was entitled to rely on the defence set out in s. 163.1(6), both as they existed before and after 2005 amendments to the Code. The trial judge acquitted the accused. The Crown appealed.

The Ontario Court of Appeal, in a decision reported 263 O.A.C. 301, allowed the appeal, quashed the acquittal and registered a conviction for possession of child pornography. The court held that the trial judge erred in her interpretation and application of the pre-amendment and post-amendment s. 163.1(6) defence. In the court's view, the accused was not entitled to rely on either version of the defence. Nor was she entitled to rely on the public good defence as it existed before the 2005 amendments (s. 163(3)). The accused appealed.

The Supreme Court of Canada held that the trial judge made errors of law regarding both versions of s. 163.1(6). In light of those errors, the Court of Appeal was correct to set aside the acquittal; however, the court 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 the accused guilty of the offence. An appeal court could only substitute a conviction for an acquittal where the trial judge's findings of fact supported a conviction beyond a reasonable doubt (Criminal Code, s. 686(4)(b)(ii)). Thus the proper remedy was to allow the appeal and order a new trial. The court also ordered a new trial regarding s. 163(3) (public good defence), as that defence was not fully explored at trial.

Civil Rights - Topic 1842.1

Freedom of speech or expression - Limitations on - Pornography (incl. child pornography) - [See first Criminal Law - Topic 587.9 ].

Criminal Law - Topic 587.9

Sexual offences - Public morals - Obscenity (incl. child pornography) - Defences - General - The Supreme Court of Canada stated that "When interpreting the defences for child pornography offences, courts must strike a difficult balance between the importance of freedom of expression and the need to protect children from abuse. Giving primacy to either of these objectives would defeat Parliament's objective. On the one hand, interpreting the defences too narrowly would result in the punishment of expressive conduct that poses a minimal risk of harm to young persons ... On the other hand, interpreting the statutory defences too broadly would undermine the laws against child pornography. The defences must not be read in a way that defeats Parliament's objectives of criminalizing child pornography and protecting children from abuse" - See paragraph 38.

Criminal Law - Topic 587.9

Sexual offences - Public morals - Obscenity (incl. child pornography) - Defences - General - Section 163.1(6) of the Criminal Code, following 2005 amendments, provided that "No person shall be convicted of an offence under this section [child pornography] 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" - The Supreme Court of Canada stated that "In our view, the proper approach is to consider the two stages of the defence as independent requirements. Section 163.1(6)(a) lists purposes that may be considered prima facie capable of serving as defences, so long as a trial judge is left with reasonable doubt as to their applicability in given circumstances. Section 163.1(6)(b) then provides that if the acts of the accused pose undue risk to children, the prima facie defence is negated, and does not apply. The purpose remains legitimate, but because of the undue risk of harm the activity poses to children, it cannot serve as a defence" - See paragraph 71.

Criminal Law - Topic 587.9

Sexual offences - Public morals - Obscenity (incl. child pornography) - Defences - General - Section 163.1(6) of the Criminal Code, following 2005 amendments, provided that "No person shall be convicted of an offence under this section [child pornography] 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" - The Supreme Court of Canada stated that "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. That is, based on all the circumstances: (1) there is an objective connection between the accused's actions and his or her purpose; and (2) there is an objective relationship between the accused's purpose and one or more of the protected activities (administration of justice, science, medicine, education, or art)" - See paragraph 7 - The court elaborated on the first component (i.e., legitimate purpose aspect) of the s. 163.1(6) defence - See paragraphs 57 to 63.

Criminal Law - Topic 587.9

Sexual offences - Public morals - Obscenity (incl. child pornography) - Defences - General - Section 163.1(6) of the Criminal Code, following 2005 amendments, provided that "No person shall be convicted of an offence under this section [child pornography] 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" - The Supreme Court of Canada discussed the second component (i.e., the "undue risk of harm" aspect) of s. 163.1(6)(b) - The court stated that "The words 'undue risk of harm' set out in s. 163.1(6)(b) should be interpreted to mean a significant risk of objectively ascertainable harm as required by the law of obscenity, rather than the former 'moral views of the community' approach ... courts must ask whether the harm is objectively ascertainable and whether the level of the harm poses a significant risk to children. It goes without saying that the harm may be either physical, psychological, or both" - See paragraph 67.

Criminal Law - Topic 587.9

Sexual offences - Public morals - Obscenity (incl. child pornography) - Defences - General - Section 163.1(6) of the Criminal Code, following 2005 amendments, provided that "No person shall be convicted of an offence under this section [child pornography] 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" - The Supreme Court of Canada discussed the "undue risk of harm" component of s. 163.1(6)(b) - The court stated that "The determination of what the accused did and its consequences are questions of fact, to be decided on the basis of the evidence at trial. The trial judge must make findings of fact regarding the risks posed by the accused's activities, based on evidence as to the degree of the risk, viewed objectively. Expert evidence, while not always necessary, may assist in establishing a link between the actions of the accused and the creation of a risk of harm to young persons ... Having made these factual findings, however, the question of whether the risk is so significant that it is 'undue' is a question of law ... The application of this legal standard to the facts is also a question of law" - See paragraph 68.

Criminal Law - Topic 587.9

Sexual offences - Public morals - Obscenity (incl. child pornography) - Defences - General - [See first and second Criminal Law - Topic 588.1 ].

Criminal Law - Topic 588.1

Sexual offences - Public morals - Obscenity (incl. child pornography) - Defences - Artistic merit - The accused was charged with one count of possession of child pornography, collected between 1999 and 2006, when pictures and videos were found on his computer - The accused claimed that his purpose in collecting the materials was to create an artistic exhibition - The trial judge accepted his explanation as a defence under s. 163.1(6) of the Criminal Code, as it read prior to 2005 amendments, and acquitted the accused - Prior to the 2005 amendments, s. 163.1(6) provided that it was a defence to a possession of child pornography charge if the accused raised a reasonable doubt as to the material's artistic merit or its educational, scientific or medical purpose - The Supreme Court of Canada held that the trial judge erred by finding that the pornographic material fell within the scope of the pre-2005 artistic merit defence on the ground that the accused 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 - See paragraphs 7 and 39.

Criminal Law - Topic 588.1

Sexual offences - Public morals - Obscenity (incl. child pornography) - Defences - Artistic merit - The accused was charged with one count of possession of child pornography, collected between 1999 and 2006, when pictures and videos were found on his computer - The accused claimed that his purpose in collecting the materials was to create an artistic exhibition - The trial judge accepted his explanation as a defence under s. 163.1(6) of the Criminal Code, as it read after 2005 amendments, and acquitted the accused - The amended provision provided that it was a defence to a child pornography charge if the act "has a legitimate purpose related to the administration of justice or to science, medicine, education or art ..." - The Supreme Court of Canada held that the trial judge 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 - Rather, Parliament's use of the word "legitimate" connoted its intention that the connection between the impugned activity and the stated purpose also be objectively verifiable - Given the erroneous legal framework applied at trial, the acquittal could not stand - However, because the factual underpinnings in relation to the objective component of the legitimate purpose branch of the defence were not fully explored, the appropriate remedy was a new trial - See paragraphs 7 and 72 to 79.

Criminal Law - Topic 588.1

Sexual offences - Public morals - Obscenity (incl. child pornography) - Defences - Artistic merit - [See second, third, fourth and fifth Criminal Law - Topic 587.9 ].

Criminal Law - Topic 588.2

Sexual offences - Public morals - Obscenity (incl. child pornography) - Defences - Educational, scientific or medical purpose - [See second, third, fourth and fifth Criminal Law - Topic 587.9 ].

Criminal Law - Topic 588.3

Sexual offences - Public morals - Obscenity (incl. child pornography) - Defences - Public good - Section 163(3) of the Criminal Code, prior to 2005 amendments, provided for a "public good defence" to child pornography charges - The Supreme Court of Canada stated that "The analysis under the public good defence involves two steps: (1) whether the actions of the accused served the public good; and, if so (2) whether the actions of the accused extended 'beyond what served the public good'" - See paragraph 41 - The Supreme Court of Canada stated that at the first step of the analysis, "... the trial judge must decide whether the possession of child pornography served the public good. The court must begin by reaching factual conclusions about what the accused did, and the effects of his actions. Once his or her conduct has been characterized, the court must consider whether the accused's actions served the public good. The focus is on the effect of the activity, not the motives of the accused ... As a preliminary matter, the trial judge must determine whether, considered objectively, there is evidence that the activity in question advanced the public good. If so, the Crown bears the burden of proving beyond a reasonable doubt that the public good was not served by the actions of the accused" - See paragraph 42.

Criminal Law - Topic 588.3

Sexual offences - Public morals - Obscenity (incl. child pornography) - Defences - Public good - Section 163(3) of the Criminal Code, prior to 2005 amendments, provided for a "public good defence" to child pornography charges - The Supreme Court of Canada stated that "The analysis under the public good defence involves two steps: (1) whether the actions of the accused served the public good; and, if so (2) whether the actions of the accused extended 'beyond what served the public good'" - See paragraph 41 - The court stated further, that "Under s. 163(4), it is a question of law whether an act served the public good ... If the court is left with a reasonable doubt that the activities, viewed objectively, served the public good, the court must go on to ask whether the conduct of the accused extended 'beyond what served the public good' ... Under s. 163(4), it is a question of law whether there is evidence that the act alleged went beyond what served the public good, but it is a question of fact whether the acts did or did not extend beyond what served the public good. Here again, the Crown bears the burden of proving beyond a reasonable doubt that the defence does not apply. The requirement that the acts not go beyond what serves the public good ensures that the public good defence will only be available if all of the activities that are alleged to constitute the offence are connected to the advancement of the public good ..." - See paragraphs 43 to 45.

Criminal Law - Topic 588.3

Sexual offences - Public morals - Obscenity (incl. child pornography) - Defences - Public good - The accused was charged with possession of child pornography (computer images), collected between 1999 and 2006 - He claimed that he collected the materials to create an artistic exhibition exploring the sexual exploitation of children - He was acquitted at trial - The Crown appealed - The accused argued that he could rely on the public good defence (Criminal Code, s. 163(3)), as it existed prior to 2005 - The Ontario Court of Appeal allowed the appeal and substituted a conviction, holding that the accused could not rely on the pre-amendment public good defence - The accused appealed - The Supreme Court of Canada held that the trial judge did not fully address the public good issue and therefore her fact findings were not capable of supporting the public good defence - Thus the trial judge's verdict of acquittal could not be restored - Further, the Court of Appeal erred in substituting a conviction because the court exceeded its jurisdiction in making its own fact findings - Under s. 686(4)(b)(ii) of the Criminal Code, the appeal court could only substitute a conviction for an acquittal if the trial judge's fact findings supported a conviction beyond a reasonable doubt, which was not the case here - A new trial was therefore ordered - See paragraphs 39 to 52.

Criminal Law - Topic 4735.2

Procedure - Information or indictment - Charge or count - Indictable offences - Form and content - Requirement of one count for each transaction - The accused was charged with one count of possession of child pornography, collected between 1999 and 2006, when pictures and videos were found on his computer - The accused claimed that the images were for an artistic exhibition about child pornography and sought to rely on the defence in s. 163.1(6) of the Criminal Code, as amended in 2005 - The accused also sought to have the information quashed as defective, claiming that he should have been charged with two counts dealing with pre and post 2005 time periods - The Supreme Court of Canada stated that it may be that it would have been preferable to charge the accused separately for the activities in the pre-amendment and post-amendment periods, given that different defences applied in each period - However, the Crown's decision to lay a single charge was not fatal - There was no merit to the accused's argument that the information was duplicitous - The accused was not prejudiced by the single count - The court rejected this ground of appeal - See paragraphs 80 to 83.

Criminal Law - Topic 4978

Appeals - Indictable offences - Powers of Court of Appeal - Power to substitute a verdict - [See third Criminal Law - Topic 588.3 ].

Criminal Law - Topic 5057

Appeals - Substitution of verdict - Substitution of conviction - [See third Criminal Law - Topic 588.3 ].

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - The Supreme Court of Canada stated that "It is trite law that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act and the intention of Parliament ... In addition, every word of a statute is presumed to have a role in achieving the objective of the Act. No word or provision should be interpreted so as to render it mere surplusage ..." - The court applied these principles of statutory interpretation in interpreting s. 163.1(6) of the Criminal Code (a provision creating a defence to child pornography charges in certain situations) - See paragraphs 59 and 60.

Statutes - Topic 2280

Interpretation - Presumptions and rules in aid - Against surplusage - [See Statutes - Topic 2601 ].

Words and Phrases

Legitimate - The Supreme Court of Canada discussed the meaning of this word as it appeared in s. 163.1(6)(a) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 7 and 57 to 63.

Words and Phrases

Undue risk of harm - The Supreme Court of Canada discussed the meaning of this phrase as it appeared in s. 163.1(6)(b) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 64 to 73.

Cases Noticed:

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 13].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 59].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81, refd to. [para. 59].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 59].

R. v. Labaye (J.-P.), [2005] 3 S.C.R. 728; 342 N.R. 304; 2005 SCC 80, appld. [para. 66].

R. v. Mara (P.), [1997] 2 S.C.R. 630; 213 N.R. 41; 101 O.A.C. 1, refd to. [para. 68].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 68].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 75].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 75].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 75].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 82].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 163(3), sect. 163(4), sect. 163(5) [paras. 12, 41]; sect. 163.1(6) [paras. 11, 14, 55]; sect. 686(4)(b)(ii) [para. 50].

Authors and Works Noticed:

Stephen, J.F., A Digest of the Criminal Law (9th Ed. 1950), p. 173 [para. 43].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 6, 210 to 213 [para. 59].

Counsel:

David E. Harris, for the appellant, Katigbak;

Christine Bartlett-Hughes, for the respondent, Her Majesty the Queen;

Christopher D. Bredt, Margot Finley and Jamie Cameron, for the intervenor.

Solicitors of Record:

David E. Harris, Toronto, Ontario, for the ap-pellant;

Attorney General of Ontario, Toronto, Ontario, for the respondent;

Borden Ladner Gervais, Toronto, Ontario, for the intervenor.

This appeal was heard on February 21, 2011, before McLachlin, C.J.C., and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The decision of the court was delivered in both official languages, on October 20, 2011, including the following opinions:

McLachlin, C.J.C., and Charron, J. (Binnie, Deschamps, Abella, Rothstein and Cromwell, JJ., concurring) - see paragraphs 1 to 85;

LeBel, J. (Fish, J., concurring) - see paragraphs 86 to 91.