Docket: CACR 2086 Clinton Matthew Leugner Appellant - v. -, 2012 SKCA 88

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 88 Date: 2012-10-03 Between: Docket: CACR 2086 Clinton Matthew Leugner Appellant - and - Her Majesty the Queen Respondent Coram: Cameron, Jackson & Herauf JJ.A. Counsel: James Korpan for the Appellant Anthony Gerein for the Respondent

Appeal: From: 2011 SKQB 469 Heard: October 3, 2012 Disposition: Appeal Allowed (orally) Written Reasons: October 4, 2012 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Herauf Jackson J.A. [ 1 ] A trial judge convicted Clinton Leugner of possessing child pornography as prohibited by s. 163.1(1) (

b) of the Criminal Code (see: R. v. Leugner , 2010 SKPC 50 , 361 Sask. R. 24). As part of his decision, the trial judge considered and rejected Mr. Leugner’s defence of legitimate purpose under s. 163.1(6) (

a) of the Criminal Code . On appeal from that decision, a

summary conviction appeal court judge sustained the conviction (see: R. v. Leugner , 2011 SKQB 469 , 388 Sask. R. 164). Mr. Leugner now appeals to this Court. [ 2 ] After the decision of the trial judge was rendered, the Supreme Court of Canada released its decision in R. v. Katigbak , 2011 SCC 48 , [2011] 3 S.C.R. 326. In Katigbak the Supreme Court of Canada established a legal framework with respect to the application of s. 163.1(6) (

a) that must be applied in a case such as this. Since the application of the principles from Katigbak involves the making of some findings of fact, which were not made in this case, the conviction must be set aside and a new trial ordered. [ 3 ] The appeal is allowed. The conviction under s. 163.1(1) (

b) of the Criminal Code is set aside and a new trial is ordered on that count.