Supreme Court orders new trial for man at centre of child porn-as-art case

OTTAWA - Canada's top court has ordered a new trial for a man who claimed he collected hundreds of child porn images for artistic purposes.

In a unanimous 9-0 decision, the Supreme Court of Canada on Thursday agreed that an appeals court was right to take the rare move of overturning a trial judge's acquittal of Robert Katigbak.

But the high court had problems with the legal grounds on which the Ontario Court of Appeal overturned Katigbak's acquittal, so it ordered a new trial.

"The Court of Appeal was correct to set aside the acquittal," the court wrote in its decision.

"However, in our respectful view, it erred in substituting a conviction. ... Consequently, we would allow Mr. Katigbak's appeal and order a new trial."

Katigbak has admitted the 628 images and 30 video clips of "real children and real abuse" constituted child pornography.

The Ontario man testified at his original trial that he collected the material over a seven-year period for research and wanted to create an exhibition on child exploitation.

But he never presented the exhibition.

Notebooks introduced at trial showed Katigbak, a photographer, previously mused about how he could create such an exhibit.

"How do you do a show on child porn? (you can't show it) — maybe a documentary?" Katigbak wrote.

"Models should show a broken spirit, fear, helplessness — show a child w/ an adult in the background (looming or doing up his pants after the abuse has occurred)."

Katigbak's lawyer, David Harris, said he wanted to read the high court's judgment before commenting.

Katigbak relied on the "artistic merit" and "educational purpose" defence, and was acquitted in 2008 of one count of possession of child pornography.

But in June 2010, Ontario's appeal court overturned the acquittal and convicted him instead.

The Supreme Court ruled that the appeal court was not entitled to address questions of fact on a Crown appeal.

"Mr. Katigbak's acquittal at trial cannot stand, and neither can his conviction on appeal," the high court said in its decision.

"We would therefore allow the appeal, and order a new trial in light of the appropriate legal framework."

Kathy Vandergrift of the Canadian Coalition for the Rights of Children raised questions about the nature of Katigbak's vast collection of child pornography.

"If he is restoring and reusing images that were obtained through exploitation of children, there is a question then of being complicit in that, frankly, from our point of view," she said.

She added there needs to be greater focus on education and prevention of child exploitation.

Note to readers: This is a revised story. An earlier version did not make clear a new trial was ordered.