R v Katigbak: Child Pornography, ‘Undue’ Harm, and the Clapham Omnibus
In R v Katigbak,  3 SCR 326, the Supreme Court of Canada (“SCC”) was called on to clarify the nature and scope of the child pornography defence in s. 163 of the Criminal Code, RSC, 1985, c C-46 [Criminal Code] that existed before and after legislative amendment in 2005. Robert Katigbak was found with 628 images and 30 video clips of child pornography on his computer’s external hard drive; at trial, the majority of these images were deemed to be easily accessible and capable of being “located by any computer user with a minimum of effort.” Consequently, he was charged with one count of possessing child pornography between 1999 and 2006, engaging both formulations of the defence.
Prior to 2005, two defences were open to an accused charged with the possession of child pornography. The first applied if the accused raised a reasonable doubt as to the material’s artistic merit or as to its educational, scientific, or medical purpose. The second was a public good defence that mandated acquittal where the act alleged to constitute the offence served, and did not extend beyond what served, the public good.
After 2005, the public good defence was eliminated in the context of pornography possession. Section 163.1(6) was amended to provide a defence if the act that is alleged to constitute the offence: (1) has a legitimate purpose related to the administration of justice or to science, medicine, education, or art; and (2) does not pose undue risk of harm to persons under the age of 18.
In the end, the terms “legitimate purpose” and “undue harm” shaped the SCC’s reconceptualization of the available defences and fuelled its project to ground an essentially moral inquiry in objective, reasonable, and empirically verifiable standards.
At trial, the accused conceded that he was in possession of the relevant materials, which constituted child pornography, throughout the relevant period of time. He argued, however, that the purpose of his possession of the material was to create an artistic exhibition that would highlight the issue of child exploitation from the perspective of the child.
The trial judge found that the accused was entitled to rely on both incarnations of the defence and acquitted him on the basis that the pornographic material fell within the scope of the pre-2005 artistic defence. Although the pornographic material itself did not possess any artistic value (it seems as though the trial judge justified this conclusion on the basis that the original material was not created for an artistic purpose), it was nonetheless possessed for an artistic purpose (ie. to create an art exhibit). For the trial judge, in other words, the artistic merit defence required a subjective conviction on the part of the accused that the material satisfied an artistic purpose. Once the credibility of the accused is established in this regard, so too is the defence.
The Ontario Court of Appeal (“OCA”), on the other hand, rejected this subjective approach. It found that the pre-2005 defence applies only where the child pornography itself had artistic merit and not simply when the accused had an artistic purpose for possessing it. The OCA held that the public good defence did not apply because the accused’s possession of the pornographic materials in this case extended beyond what served the public good. The post-2005 defence did not apply because the possession caused “undue harm,” understood as a negative effect that society would find “inappropriate, unjustifiable, excessive or unwarranted in the circumstances of the case.” Consequently, the acquittal was set aside, a conviction substituted, and leave to appeal to the SCC guaranteed.
The SCC’s Approach—The Objectification of Morality and the Dilution of the Defence
In the end, the SCC rejected the approaches of both lower courts. McLachlin and Charron JJ. problematicized the trial judge’s interpretation of “artistic merit” in the pre-2005 defense as capable of being spliced from the inherent quality of pornography. Further, they pointed to Parliament’s use of the term “legitimate” in qualifying “purpose” in the current version of the defence, signalling the need to add an objective, externally-verifiable component to the trial judge’s purely subjective analysis.
Further, while the OCA was correct in setting aside the acquittal, it nonetheless erred in two crucial respects. The first was its substitution of a conviction, which can only be done when the trial judge’s findings of fact support a conviction beyond a reasonable doubt. In other words, an appeal from acquittal is restricted to questions of law alone. Since the trial judge applied an incorrect analytic framework to the interpretation of both defences, it did not furnish the OCA with adequate facts on which to ground a conviction. Thus, the appropriate remedy (and the one ordered by the SCC) was a new trial.
The second error made by the OCA was its adoption of a community standard of tolerance test to determine if the risk of harm to children was “undue.” The SCC’s rejection of this approach may be oriented within a broader historical debate about the validity (and desirability) of Parliament enacting criminal laws on the basis of morality (see, for example R v Malmo-Levine; R v Caine,  3 SCR 571). Essentially affirming the dangers of imposing the morality of the Clapham omnibus as the standard by which to measure “undue harm,” McLachlin and Charron JJ. cited R v Labaye,  3 SCR 728, para 66:
[O]ver time, courts increasingly came to realize that morals and taste were subjective, arbitrary and unworkable in the criminal context, and that a diverse society could function only with a generous measure of tolerance for minority mores and practices.
The SCC emphasized that the correct approach was to assess whether the physical and/or psychological harm is “objectively ascertainable.” In this regard, expert evidence may assist in identifying the connection between the impugned actions and harm caused. Despite the SCC’s purported goal of anchoring the harm caused by pornography in an objective analysis, the community morality standard does not disappear but rather simply gets pushed down below the surface.
The SCC’s distancing itself from the concurring opinion of LeBel J. (on behalf of himself and Fish J.) is telling in this regard. LeBel J. found that preventing the defence in s. 163 from being rendered illusory in practice necessitates the theoretical splicing of the inherent nature of pornography (ie. the “generic” harms associated with the possession of child pornography) from the harms that exceed this threshold and are specific to the circumstances of the offence. McLachlin and Charron JJ. found that such a splicing, assuming it can be realistically drawn, would not serve any useful purpose.
In other words, the inherent harms of possession of child pornography (an offence that, as pointed out by LeBel J., could be committed by an individual entirely in private) could be sufficient to ground a finding that it causes “undue” harm to children. In practice, this conclusion may be tantamount to adopting a presumption that the inherent quality of pornography causes undue harm, despite the apparent intention of Parliament to protect its possession for “legitimate purposes.” The logical question to ask, then, is on what basis could this presumption be justified except on shared community understandings of morality? The SCC indirectly endorses the OCA’s community morals test at the same time as it rejects it.
In the criminal realm, it is inevitable that community values come into play in defining that which is illegal, that which is simply immoral, and that which is illegal precisely because it is immoral. In navigating the subjective/objective dialectic set up by juxtaposing the two lower courts’ decisions, the SCC grapples with the issue of how much weight is to be given to community values at the expense of individual good faith convictions in the artistic merit of their work. In other words, this is not really an inquiry into the objective harm caused by certain actions, verifiable by expert evidence.
Such an objective analysis hinges on the splicing of the inherent quality (and harm) of pornography from its effects in a particular case. Perhaps the majority is correct in pointing out that this is a futile exercise. But so is denying the persistent relevance of community morality in “undue harm” analysis.