A Toronto photographer who was acquitted of possession of “repulsive” child pornography he amassed as part of an art project was ordered convicted by Ontario’s highest court.

Madam Justice Louise Botham acquitted Robert Katigbak in 2008 after she accepted the 32-year-old’s version that he spent seven years gathering images of children being sexually assaulted.

In an unanimous judgment released Tuesday, the Ontario Court of Appeal quashed that acquittal and replaced it with a conviction for possession of 628 images and 30 video clips of children and babies being sexually assaulted.

Police seized 567 unique images of “real children and real abuse. . .with images of adults, both male and female, engaging in (sexual) activities with children,” the judgment stated.

The judgment by Mr. Justice Robert Blair, Mr. Justice Michael Moldaver and Madam Justice Janet Simmons pointed out that Katigbak told investigators he had been collecting the child porn images for seven years to create his gallery exhibit.

Images of penetration of babies were displayed, the court noted.

“They (pornographic images) are repulsive in the extreme to anyone who cares about children and the protection of children,” the judgment stated.

The appeal court judges sharply criticized Madam Justice Botham, of the Ontario Court of Justice, for mistakenly accepting his defence of artistic merit and freedom of expression.

Few people accused of possessing child pornography will evade convictions by using artistic merit as a shield, the court warned in its judgment. The judges noted Canada’s child pornography laws are among the toughest in the world.

Botham “paid scant attention to society’s interests in ensuring the protection of children from sexual exploitation and abuse,” the judgment stated. Botham never considered the psychological trauma the children depicted in the images suffered.

“Trial judges must take a hard look at the facts when the ‘legitimate purpose’ defence is put forward,” the judgment stated. “Duelling and important societal interests are at stake. (But) the freedom of expression is not absolute.”

The court concurred with Crown counsel Christine Bartlett-Hughes that Katigbak wasn’t an artist fashioning an ambitious project prompting viewers to abhor sexual violence against children. He was simply a relentless child-porn fan when he was arrested at his home and his computer was seized and searched on April 19, 2006.

Katigbak, a psychology graduate, worked at Japan Camera for several years and Pentax Canada before he was laid off.

His goal was to “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.”

His collection never qualified for the artistic merit defence, and anyone could see his “expressed purpose or intention was unreasonable,” the judges said.

Sentencing is to be scheduled.

By SAM PAZZANO, Toronto Sun