Her Majesty the Queen v. Walsh

[Indexed as: R. v. Walsh]

Ontario Reports

Court of Appeal for Ontario

Feldman, Gillese and Miller JJ.A.

January 22, 2021

154 O.R. (3d) 263 | 2021 ONCA 43

Case Summary

Criminal law — Sexual offences — Transmitting intimate images — Accused making FaceTime call while complainant was naked and vomiting into a toilet — Trial judge directing verdict of acquittal on charge of transmitting intimate image without consent — Trial judge finding that recording under definition of "intimate image" required capability of reproduction — Crown's appeal from acquittal allowed and new trial ordered — Trial judge's interpretation of what constituted recording unduly restrictive — Uncontroversial that recipient of FaceTime call could take and print out screen shot — Criminal Code, R.S.C. 1985, c. C-46, s. 162.1.

Criminal law — Trial — Charge to jury — Trial judge instructing jury on consent as defence to sexual assault and by equating consent with what complainant "wanted" — Accused's appeal from conviction dismissed — Instruction did not prejudice accused — Trial judge used "wanted" only once and repeatedly instructed the jury that they had to be satisfied that the complainant voluntarily agreed to the sexual activity [page264] in question, using statutory definition of consent — Criminal Code, R.S.C. 1985, c. C-46, s. 273.1.

Criminal law — Trial — Closing address — Crown commenting that defence counsel read in excerpts from complainant's cross-examination transcript not in chronological order and in such a tone as to lose nuance and crying — Defence counsel objecting that comments suggested he was somehow deceiving jury and that there was no evidence complainant was crying — Trial judge dismissing objections — Accused's appeal from conviction for sexual assault dismissed — Neither of the Crown's comments deprived the accused of a fair trial.

Statutes — Interpretation — Intention of legislation — Accused making FaceTime call while complainant was naked and vomiting into a toilet — Trial judge directing verdict of acquittal on charge of transmitting intimate image without consent — Trial judge finding that recording under definition of "intimate image" required capability of reproduction — Crown's appeal from acquittal allowed and new trial ordered — Trial judge's interpretation of what constituted recording unduly restrictive — Requiring capability of reproduction failed to respond to ways in which modern technology permitted sexual exploitation through sharing of intimate images — Uncontroversial that recipient of FaceTime call could take and print out screen shot — Criminal Code, R.S.C. 1985, c. C-46, s. 162.1.

The complainant accompanied the accused to his mother's condominium and into the bedroom where the complainant undressed. The complainant and accused agreed that the accused was on top of the complainant when she told him she was going to be sick. She went into the bathroom and while she was naked and vomiting into the toilet she heard a chiming sound that she knew signalled a FaceTime call. She saw the accused pointing his cellphone at her and she heard laughing on both ends of the call. The accused was charged with sexual assault and charged under s. 162.1 of the Criminal Code with transmitting an intimate image without consent. The complainant told police that the accused had sex with her without her consent, but did not tell the police that she was forced to perform oral sex. She mentioned oral sex for the first time during cross-examination at the preliminary inquiry. At trial, defence counsel cross-examined the complainant on her failure to mention oral sex to the police, and in closing submissions reviewed parts of the preliminary inquiry transcript. The Crown's closing submissions included comments that defence counsel read parts of the transcript not in chronological order and that nuanced pauses and crying were lost when counsel read the transcripts with his own tone. Defence counsel objected that the former comment left the jury with the impression that he was somehow deceiving them by not reading the excerpt chronologically. He objected to the latter comment on the basis that there was no evidence that the complainant had been crying. The trial judge found the comment on chronology to be a minor point in which any further instruction might distract the jury. The trial judge stated that within the context the jury was unlikely to misunderstand the comment about crying and as such dismissed the second objection. The jury found the accused guilty of sexual assault. The trial judge directed a verdict of acquittal on the s. 162.1 count on the basis that a FaceTime call was not a visual recording within the meaning of the section. The accused appealed his conviction and the Crown appealed the acquittal.

Held, the accused's appeal should be dismissed; the Crown's appeal should be allowed. [page265]

Per Gillese and Feldman, JJ.A.: The trial judge erred in her interpretation of "recording" in s. 162.1 and in her approach to the sufficiency of the evidence. The judge stated that a FaceTime call was a live transmission with an auditory and a visual component, and added that it might possess additional features that would amount to a recording, but that evidence was not before her and she was not prepared to take judicial notice of the its technical workings and application. That interpretation was unduly restrictive. The wording of s. 162.1 was intentionally broad. FaceTime calls were directly caught by its language, in which an "intimate image" was defined to mean a visual recording including a video recording. A FaceTime call was a visual recording. There was nothing in s. 162.1 to suggest that the intimate image being shared be capable of reproduction. Restricting the meaning of "recording" to require the capability of reproduction failed to respond to the ways in which modern technology permitted sexual exploitation through the non-consensual sharing of intimate images. The trial judge's interpretation based culpability on the medium used to share the intimate image rather than on whether the conduct breached the victim's sexual integrity and privacy. There was evidence before the trial judge from both the complainant and from the police about how a FaceTime call worked and there was no need for expert evidence. The fact that FaceTime sends and receives video messages was uncontroversial, as was the capability of a recipient of a call to take and print out a screen shot. There was sufficient evidence for the jury to conclude that the accused made available to the recipient of one or more FaceTime calls the image of the complainant while she was naked and vomiting. A new trial on the s. 162.1 charge was ordered.

Neither of the Crown's impugned comments deprived the accused of a fair trial. Regarding the first impugned comment, defence counsel was entitled to put excerpts of the transcripts to the complainant out of order, but it turned out that he had not done so. Both defence counsel and the trial judge mistakenly believed that the excerpts were not in chronological order. In any event, the comment was not inflammatory or demeaning, and caused no prejudice to the accused. It was a minor factual inaccuracy made within the context of a valid point that excerpts from a transcript did not tell a complete story and that what mattered was the complainant's explanation of the inconsistency. As for the second impugned comment, there was nothing wrong with reminding the jury that nuances and emotion were lost when considering transcripts. To the extent that it may have veered into impropriety through its reference to crying, in the context of the whole address it did not deprive the accused of a fair trial.

There was no error in the trial judge's instruction on consent. The instruction described consent as a voluntary agreement and restated the description to say that the complainant wanted the accused to do what he did. The defence did not object at trial, but on appeal submitted that consent and wanting were not synonymous and that the jury was misled into understanding that subjective desire was a necessary component of consent. The trial judge used "wanted" only that one time and otherwise repeatedly instructed the jury that they had to be satisfied that the complainant voluntarily agreed to the sexual activity in question, using the statutory definition of consent. The impugned instruction could not have prejudiced the accused.

Per Miller J.A. (dissenting): The Crown's appeal from the acquittal ought to have been dismissed. The Crown argued that the trial judge misinterpreted s. 162.1 in understanding a visual recording as an image of some permanence capable of reproduction. Counsel for the defence put definitions before the trial judge from two dictionaries, both of which defined "recording" in terms of a degree of permanence and capacity for reproduction. It was an unsound proposition that because [page266] the meaning of words can change over time, the meaning of a statute necessarily changes with them. The Crown made a sound proposition that where Parliament uses broad classes and concepts to denote its meaning, it necessarily assigns to subsequent interpreters the task of determining whether some instance comes within the enumerated class or concept. However, FaceTime was a ubiquitous technology well before the enactment of s. 162.1 in 2015. Had Parliament left "intimate image" undefined the Crown's case would have been plausible, but because "intimate image" was defined as a recording, courts had to give effect to that choice. Based on the text, context and purpose of s. 162.1, it could only be concluded that the section did not apply to live-streamed images. Such an interpretation did not result in absurd consequences as the accused arguably would have been answerable to voyeurism offences under s. 162.

R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, 114 D.L.R. (4th) 419, 166 N.R. 245, J.E. 94-778, 71 O.A.C. 241, 89 C.C.C. (3d) 402, 29 C.R. (4th) 243, 23 W.C.B. (2d) 385, EYB 1994-67655, 1994 CCAN para. 10,016, apld

R. v. Manasseri (2016), 132 O.R. (3d) 401, [2016] O.J. No. 5004, 2016 ONCA 703, 344 C.C.C. (3d) 281, 133 W.C.B. (2d) 203 [Leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 513], consd

R. v. Iyeke, [2016] O.J. No. 2430, 2016 ONCA 349; R. v. Shimizu, 2010 CarswellOnt 10397, distd

Other cases referred to

Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; Canada v. Cheema, [2018] F.C.J. No. 199, 2018 FCA 45, [2018] 4 F.C.R. 328, [2018] G.S.T.C. 17, 288 A.C.W.S. (3d) 791, 420 D.L.R. (4th) 534 [Leave to appeal to S.C.C. refused [2018] S.C.C.A. No. 137, [2019] G.S.T.C. 12]; Canada Trustco Mortgage Co. v. Canada, [2005] 2 S.C.R. 601, [2005] S.C.J. No. 56, 2005 SCC 54, 259 D.L.R. (4th) 193, 340 N.R. 1, J.E. 2005-1901, [2005] 5 C.T.C. 215, 2005 D.T.C. 5523, 2005 D.T.C. 5547, 142 A.C.W.S. (3d) 1075, EYB 2005-96529; Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., 1993 31 (SCC), [1993] 3 S.C.R. 724, [1993] S.C.J. No. 114, 108 D.L.R. (4th) 1, 160 N.R. 321, J.E. 93-1815, 17 Admin. L.R. (2d) 141, 93 CLLC para. 14,062, 43 A.C.W.S. (3d) 396; Gambert v. Ball (1863), 32 L.J.C.P. 166; Pharmascience Inc. v. Binet, [2006] 2 S.C.R. 513, [2006] S.C.J. No. 48, 2006 SCC 48, 273 D.L.R. (4th) 193, 353 N.R. 343, J.E. 2006-2096, 151 A.C.W.S. (3d) 717, EYB 2006-110506; R. v. B. (J.), [2018] O.J. No. 4133, 2018 ONSC 4726 (S.C.J.); R. v. D. (R.), [2020] O.J. No. 112, 2020 ONCA 23, 460 C.R.R. (2d) 206; R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, [1999] S.C.J. No. 10, 1999 SCC 711, 169 D.L.R. (4th) 193, 235 N.R. 323, [1999] 6 W.W.R. 333, J.E. 99-543, 68 Alta. L.R. (3d) 1, 232 A.R. 1, 131 C.C.C. (3d) 481, 22 C.R. (5th) 1, 41 W.C.B. (2d) 122, 1999 CCAN para. 10,007; R. v. Jarvis, [2019] 1 S.C.R. 488, [2019] S.C.J. No. 10, 2019 SCC 10, 429 C.R.R. (2d) 175, 433 D.L.R. (4th) 195, 52 C.R. (7th) 62, 375 C.C.C. (3d) 324, 2019EXP-492; R. v. Jarvis, [2002] 3 S.C.R. 757, [2002] S.C.J. No. 76, 2002 SCC 73, 219 D.L.R. (4th) 233, 295 N.R. 201, [2003] 3 W.W.R. 197, J.E. 2002-2111, 8 Alta. L.R. (4th) 1, 317 A.R. 1, 169 C.C.C. (3d) 1, 6 C.R. (6th) 23, 101 C.R.R. (2d) 35, [2003] 1 C.T.C. 135, 2002 D.T.C. 7547, 55 W.C.B. (2d) 118, JCPQ 2003-2; R. v. Jones, [2011] O.J. No. 3979, 2011 ONCA 584, 283 O.A.C. 219, 277 C.C.C. (3d) 143, 97 W.C.B. (2d) 283; R. v. M. (S.), [2019] O.J. No. 6208, 2019 ONSC 7073 (S.C.J.); R. v. Perka, 1984 23 (SCC), [1984] 2 S.C.R. 232, [1984] S.C.J. No. 40, 13 D.L.R. (4th) 1, 55 N.R. 1, [1984] 6 W.W.R. 289, J.E. 84-1013, 28 B.C.L.R. (2d) 205, 14 C.C.C. (3d) 385, 42 C.R. (3d) 113, 13 W.C.B. 33, EYB 1984-149792, 1984 CCAN para. 10,009; R. v. Rose (1998), 1998 768 (SCC), 40 O.R. (3d) 576, [1998] 3 S.C.R. 262, [page267] [1998] S.C.J. No. 81, 166 D.L.R. (4th) 385, 232 N.R. 83, 115 O.A.C. 201, 129 C.C.C. (3d) 449, 20 C.R. (5th) 246, 57 C.R.R. (2d) 219, 40 W.C.B. (2d) 192, 1998 CCAN para. 10,062; R. v. Rowe, [2011] O.J. No. 5382, 2011 ONCA 753, 285 O.A.C. 249, 281 C.C.C. (3d) 42, 98 W.C.B. (2d) 669; R. v. W. (D.L.), [2016] 1 S.C.R. 402, [2016] S.C.J. No. 22, 2016 SCC 22, 29 C.R. (7th) 344, 129 W.C.B. (2d) 514, 335 C.C.C. (3d) 269, 398 D.L.R. (4th) 193, 388 B.C.A.C. 1, 2016EXP-1868, J.E. 2016-1035; R. v. Wookey, [2016] O.J. No. 4158, 2016 ONCA 611, 363 C.R.R. (2d) 177, 132 W.C.B. (2d) 336, 351 O.A.C. 14; Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC para. 210-006, 76 A.C.W.S. (3d) 894, D.T.E. 98T-154; Sylvestre v. Sylvestre, [2018] S.J. No. 157, 2018 SKQB 105; Thomson v. Canada (Deputy Minister of Agriculture), 1992 121 (SCC), [1992] 1 S.C.R. 385, [1992] S.C.J. No. 13, 89 D.L.R. (4th) 218, 133 N.R. 345, J.E. 92-277, 3 Admin. L.R. (2d) 242, 31 A.C.W.S. (3d) 762, EYB 1992-67213; Williams v. Canada (Minister of Public Safety and Emergency Preparedness), [2017] F.C.J. No. 1267, 2017 FCA 252, [2018] 4 F.C.R. 174, 143 W.C.B. (2d) 492, 287 A.C.W.S. (3d) 80, 417 D.L.R. (4th) 173

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 161.1(2), 162 [as am.], (1), (4), 162.1, (1), (2), (a), (b), (c), 163.1 [as am.], (1)(a), 273.1(1), 276 [as am.], (2) [as am.], 278.95

Narcotic Control Act, R.S.C. 1970, c. N-1 [rep.]

Protecting Canadians from Online Crime, S.C. 2014, c. 31

Authorities referred to

Beaulac, Stéphane, Handbook on Statutory Interpretation: General Methodology, Canadian Charter and International Law (Markham, Ont.: LexisNexis, 2008)

Côté, Pierre-André, Stéphane Beaulac & Mathieu Devinat, The Interpretation of Legislation in Canada, 4th ed. (Toronto: Carswell, 2011)

Department of Justice, Report to the Federal/Provincial/ Territorial Ministers Responsible for Justice and Public Safety: Cyberbullying and the Non-Consensual Distribution of Intimate Images (June 2013)

Driedger, Elmer A., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983)

Ekins, Richard, The Nature of Legislative Intent (Oxford: Oxford University Press, 2012)

Ekins, Richard, "Sentences, Statements, Statutes" (2016) Analisi e Diritto 321

Hutchison, Cameron, The Fundamentals of Statutory Interpretation (Toronto: LexisNexis, 2018)

Plaxton, Michael, Sovereignty, Restraint, and Guidance: Canadian Criminal Law in the 21st Century (Toronto: Irwin Law, 2019)

Scalia, Antonin & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (St. Paul, MN: Thompson/ West, 2012)

Sullivan, Ruth, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis Canada, 2014)

Watt, David, Watt's Manual of Criminal Jury Instruction, 2nd ed. (Toronto: Carswell, 2015)

APPEAL by accused from conviction for sexual assault entered on September 21, 2018, by Byrne J., sitting with a jury, and by Crown from directed verdict of acquittal on a charge of transmitting an intimate image without consent on September 28, 2018, by Byrne J., sitting with a jury. [page268]

Rebecca De Filippis, for appellant/respondent Her Majesty the Queen.

Philip Campbell, for respondent/appellant Patrick Walsh.

GILLESE J.A. (FELDMAN J.A. concurring): —

I. Overview

[1] The accused was charged with sexual assault arising from an incident that took place on May 12-13, 2016.

[2] He was also charged, under s. 162.1 of the Criminal Code, R.S.C. 1985, c. C-46, with transmitting an "intimate image" without consent by making FaceTime calls to his friends in which he allegedly showed the complainant while she was naked and vomiting in his bathroom. Under s. 162.1(2), intimate image means a "visual recording of a person made by any means".

[3] Sections 162.1(1) and (2) read as follows:

Publication, etc., of an intimate image without consent

162.1(1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) of an offence punishable on summary conviction.

Definition of intimate image

(2) In this section, intimate image' means a visual recording of a person made by any means including a photographic, film or video recording,

(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;

(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and

(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.

[4] The accused was tried by judge and jury.

[5] At the close of the Crown case, the trial judge directed a verdict of acquittal on the s. 162.1 count. She concluded that a FaceTime video call is not a visual "recording" for the purposes of s. 162.1(2) because the images captured during the FaceTime call do not "have the capability for reproduction". She stated that a FaceTime call might possess features that would amount to a recording but that evidence was not before her. [page269]

[6] The jury returned a verdict of guilty on the sexual assault count.

[7] The Crown appeals against the acquittal. The accused appeals against conviction. To avoid confusion, I refer to the parties throughout as the Crown and the accused.

[8] For the reasons that follow, I would allow the appeal against acquittal and dismiss the appeal against conviction.

II. Background

[9] The sexual assault count encompassed two alleged acts of sexual activity that took place on the night of May 12-13, 2016. At the time, the complainant was a student at a university in Toronto and the accused was a student at a university in Detroit but was living in Toronto for the summer.

[10] The accused and the complainant met briefly about a year before the incident giving rise to these appeals, when the complainant went to a party the accused was hosting at his condominium. They did not see each other again until the night in question.

[11] On the evening of May 12, 2016, the complainant and the accused ran into each other at a bar in Toronto where the complainant was celebrating her birthday. The accused approached the complainant and said that he recognized her. They started talking and he invited the complainant to his mother's nearby condominium (a different condominium than where they first met). They walked there together, were kissing, and quickly moved to the bedroom where the complainant undressed, with the help of the accused.

[12] The complainant testified that the accused pushed her head to his groin, forcing her to perform oral sex on him, after which he began to penetrate her vagina, to which she repeatedly said "no".

[13] The accused testified that the complainant initiated the oral sex. He denied forcing her head and said that the oral sex was consensual. He said he then asked her if she wanted him to get a condom, she did not reply, and they continued kissing. The accused maintains that no intercourse occurred.

[14] Both agree that the accused was on top of the complainant when she told him she was going to be sick. He allowed her to get up and go to the bathroom where she began throwing up into the toilet.

[15] The complainant testified that while she was naked and had her head "pretty much buried" in the toilet, she heard a chiming sound that she knew signalled a FaceTime call. She had owned an iPhone for several years and knew what FaceTime was [page270] and what the FaceTime chime sounds like. She looked up and saw the accused pointing his cellphone at her and heard someone talking on the other end of the call. She heard the accused say something to the effect of "look at this" and understood, from the conversation between the accused and the others on the call, that they were making fun of her. She also heard laughing on both ends of the call. She felt scared by what had just happened and "even more scared" because others could see her in the bathroom, naked and vomiting, and she knew they could take a screenshot or record what was happening. She said, "with the internet nowadays, like anyone could see that".

[16] The complainant heard the accused walk away and then she heard another FaceTime chime. The accused returned to the bathroom and had another FaceTime call while pointing his cellphone at her.

[17] The accused's cell phone records were entered as exhibits at trial. Those records showed that three FaceTime calls were made on his cell phone between 12:54 a.m. and 1:01 a.m. on May 13, 2016. All three calls were made to friends of the accused. The first call lasted one minute and 36 seconds; the second call lasted 0 seconds; and the third call lasted five minutes and 17 seconds. The accused testified that he called three of his friends in the United States to get their advice.

[18] Detective Constable Angus from the Tech Crimes Unit of the Toronto Police Service, one of the investigating officers, testified at trial. He explained that he was familiar with iPhones, has had an iPhone since they were first released, and was familiar with the FaceTime application. He was not qualified as an expert before giving his evidence.

[19] DC Angus had examined the accused's cell phone and extracted some data from it. He first explained how an extraction report sorts FaceTime calls. He then explained the FaceTime application itself. He described FaceTime as a video-calling platform or video messaging, and that those engaged in the FaceTime call see one another. He said, "so, much like a phone call, it's like a video phone call".

[20] DC Angus also explained how the cameras on the phones are used in a FaceTime application.

So every iPhone has front and back cameras. So when you are in the FaceTime application, you can choose which camera video feed you're sending to the other person. So you can pick the selfie camera [ . . . ] so the person on the other end can see you and you can see them on the screen. Or you can choose the back camera, so they can see whatever you are pointing your phone at and you can still see the person you are communicating with. [page271]

III. Trial Rulings

[21] Three of the trial judge's rulings are challenged in these appeals: her direction that a verdict of acquittal be entered on the s. 162.1 charge; her ruling on the defence s. 276 application;¹ and her disposition of defence objections to the Crown closing. Each of the rulings is discussed below.

A. The directed verdict of acquittal on the s. 162.1 charge

1. The parties' positions at trial

[22] After the Crown closed its case, defence counsel brought an application for a directed verdict on the s. 162.1 count. He asserted that for the Crown to obtain a conviction under s. 162.1, the Crown had to show that the accused (1) knowingly disseminated, (2) an intimate image of a person, (3) while knowing or being reckless as to whether that person gave their consent to the dissemination. He argued that the Crown could not meet its burden on the second point -- the existence of an intimate image. He contended that a successful prosecution required proof that the image was a "recording" and that the common meaning of recording is something that has "been committed to a form where it can be reviewed, referred to or reproduced at a later time, something with a degree of permanence".

[23] The Crown argued that "recording" must be read in the context of the harm that s. 162.1 was enacted to address: sexual exploitation committed through technology, including cyberbullying and revenge porn. It maintained that this harm occurs when an image of an intimate moment is shared without the [page272] complainant's consent and that the recipient's inability to further share or preserve the moment does not negate the harm or diminish the sender's culpability. Moreover, the Crown argued, there was sufficient evidence that FaceTime calls were capable of reproduction because the complainant testified that recipients of the FaceTime call could have taken a screenshot of the call.

2. The trial judge's ruling

[24] The trial judge gave the following reasons for allowing the application and directing a verdict of acquittal on the s. 162.1 count.

[25] The issue on the application was whether a FaceTime call amounts to a "visual recording" as set out in s. 162.1(2). The trial judge said that the "ordinary common-sense definition" of visual recording is "any image captured on any device, electronic or otherwise, that has the capability for reproduction". While there was no dispute that a FaceTime call is "visual", the trial judge stated that she had difficulty "with the absence of evidence regarding the recording component". She listed the three sources of evidence on that matter: that of the complainant; the accused's cell phone records which showed that he made three FaceTime calls on his cell phone "at a time closely connected to the allegations"; and the evidence of DC Angus.

[26] The trial judge described the complainant's testimony as follows: she saw the accused pointing a cell phone at her while she was naked and vomiting into the toilet in his bathroom; she heard laughing and someone other than the accused speaking; and she heard a chiming sound that she associated with a FaceTime call.

[27] The trial judge summarized DC Angus's evidence as: FaceTime is a video-calling platform; each person's phone has a camera; and the sender and recipient can see each other on video. She noted his description of FaceTime as a "video phone call" and his view that using FaceTime is as easy as making a traditional phone call.

[28] The judge then stated:

The only evidence I have available to me is that a FaceTime call is identical to a phone call with the added component of an image. A phone call is a live real-time auditory transmission to another person. It is not a recording. A FaceTime call is also a live real-time transmission to another person, with both an auditory and a visual component.

[29] The trial judge added that "it may be" that a FaceTime call possesses additional features in its transmission or in the capturing of images that would amount to a recording, but that evidence was not before her. She stated that she was "not prepared to take [page273] judicial notice of the technical workings and application of a FaceTime call". She concluded that the deficiency in the evidence was a fatal flaw and that a directed verdict had to follow.

B. Ruling on the s. 276 application

In light of the mandatory ban on publication contained in s. 278.95 of the Criminal Code, paragraphs 30 to 35 [in the original document] have been redacted from the public version of this decision.

C. Defence objections to the Crown closing

1. Background

[36] In her statement to the police, the complainant said that the accused had sex with her without her consent. She did not tell the police that she was forced to perform oral sex. She mentioned the oral sex for the first time, during cross-examination at the preliminary inquiry. During that cross-examination, the complainant said that "other things" happened that night. When asked if she was referring to other sexual acts, she responded "just sex then. Yeah, penetration." A short time later, defence counsel asked again about her statement that "other things" had happened. In the series of questions that followed, the complainant said that she was "forced to go down on" the accused -- "like my head kind of being grabbed and pushed and that's where I was kind of like -- and yeah, but I didn't say 'no' at that point".

[37] At trial, defence counsel cross-examined the complainant on her failure to mention the oral sex in her police interview. In his cross-examination, he put parts of the preliminary inquiry transcripts to her. She explained that she had not mentioned the oral sex earlier because she was uncomfortable talking about sexual acts in a courtroom and it was hard for her to think about what happened. She also said she thought she should focus on the acts to which she explicitly said "no" and testified that only later did she realize that she did not have to say "no" out loud for an act to constitute sexual assault.

[38] Both defence counsel and the trial Crown referred to the complainant's evidence at the preliminary inquiry in their closing submissions.

[39] In his closing submissions, defence counsel reviewed the parts of the preliminary inquiry transcript that he had put to the complainant in cross-examination and argued that her answers and her late disclosure of the oral sex demonstrated that she could not be trusted. He described her answers as "profoundly dishonest" and her explanation for the inconsistency as "self-serving". [page274] He argued that the complainant's late disclosure of the oral sex was a sign that her evidence at trial could not be trusted.

[40] The trial Crown objected to the defence counsel's emphasis on the preliminary inquiry transcripts in his closing submissions. She stated that the preliminary inquiry transcripts were not evidence and said that they had not been read in chronological order. She also said that defence counsel had added tone and emphasis to which the transcript could not speak. She asked the trial judge for an instruction on the tone and intonation that defence counsel had added to his reading of the preliminary inquiry transcripts. The trial judge replied that the Crown could make that argument before the jury. Defence counsel did not object.

[41] In her closing submissions, the trial Crown urged the jury not to place undue weight on the complainant's evidence at the preliminary inquiry. She acknowledged that the complainant had failed to mention the oral sex until her cross-examination at the preliminary inquiry but argued that the circumstances of the complainant's disclosure were understandable and did not undermine her credibility.

[42] The trial Crown then said the following.

Now, I want to go to the inconsistency that my friend raises about oral sex in the prelim transcripts. You have to be very careful about that material.

First of all, [the complainant] testified in front of you, and you could look at her demeanour, she testified that that was one answer at the preliminary inquiry that was taken out of context. She had already alluded to the other sexual act earlier in her testimony. She explained she was alluding to it when she stated "No, no, never mind. It was just penetration." Again, while that might not have been the most eloquent account or her account might not have flowed seamlessly that's not a signifier of deceit. Instead, as she explained to you, it's a reflection of the reality of recounting a highly personal sexual trauma in a courtroom setting. Plus, my friend has read you the -- parts of the transcript, not in chronological order, and that testimony is not evidence before you. It is incomplete. He adds his own tone. We all add tone to things. That gives it character. He's adding that to the transcript.

You cannot tell -- this is why we don't rely on transcript -- on prelim transcripts as evidence. You cannot tell her demeanour when she is giving that evidence. You don't know if she's crying when she's saying that. You don't know if she's breaking down when she's saying that. You don't know if she's completely disassociated because you didn't see her testify at the prelim. You did not see her testify for the first time. So, nuanced pauses, crying, is lost when my friend reads in prelim transcripts with his own tone.

(Emphasis added)

[43] Defence counsel objected to two aspects of the trial Crown closing. [page275]

2. Defence counsel's first objection

[44] Defence counsel's first objection was to that part of trial Crown's closing submission in which she said that, in his closing submission, he had read parts of the transcript "not in chronological order" (the "First Impugned Comment"). He said that the First Impugned Comment left the jury with the impression that he had not gone through the preliminary inquiry transcripts in chronological order when he had. He argued that this gave the jury the impression that he was "somehow deceiving them".

[45] The trial judge said that, on her reading of the preliminary inquiry transcript, there was an issue with the chronology and that, while he was entitled to use the transcript in asking the complainant questions, she did not think she could say his use of it was "absolutely in chronological order". She said she thought defence counsel used it "topically" in chronological order but that was not necessarily how the preliminary inquiry transcript read. Defence counsel agreed that in cross-examination he jumped "back and forth" in questioning and it was not chronological. (In fact, he was mistaken on this point because he did put the preliminary inquiry transcripts to the complainant in chronological order.) But, he argued, when he went through the preliminary inquiry transcript in his closing submissions, he did so in chronological order.

[46] The trial judge concluded that it would be unfair to tell the jury that defence counsel read excerpts from the preliminary inquiry transcript in chronological order without also telling the jury that the excerpts had not been put to the complainant in chronological order. She described the First Impugned Comment as "an incredibly minor point". She also stated that: "diving into [the First Impugned Comment] would only serve to distract the jury"; she did not find that the First Impugned Comment negatively reflected on defence counsel; and she wasn't sure that it required a correction. If a correction was needed, the trial judge said that it had to be balanced, with a focus on the evidence.

[47] The trial judge ruled on the First Impugned Comment, saying:

I have thought about your request to add an instruction to the jury to correct what you believe was an inappropriate comment by the Crown when she suggested to the jury that the prelim evidence was not in chronological order. I'm of the view that if I instruct the jury in that way, that it would also necessitate then a comment on your cross-examination of the complainant and indicate to them, that that was not in chronological order, despite the fact that what was read to them, which is not evidence, was in chronological order. But my understanding is you don't want that charge put to them. [page276]

[48] Defence counsel answered, "That's correct".

3. Defence counsel's second objection

[49] Defence counsel's second objection related to the Crown's comments about the complainant's emotional state when testifying at the preliminary inquiry (the "Second Impugned Comment"). He acknowledged that the Crown was "on good footing" when she said that a witness' demeanour is lost when you look at the preliminary inquiry transcripts but said she went too far when she said "the crying was lost" because there was no evidence that the complainant had been crying.

[50] The trial judge dismissed the second objection, saying;

I think you take it out of context, because what I recall of the Crown's closing was that that was in a context of you don't know what the demeanour was. You don't know if there was crying. You don't know if there were pauses, you don't know. So I don't think it was just, look, she was crying and you didn't hear it. That's not the takeaway that I took. [. . .] I think if you cherry pick it out of the totality of her submissions, yes, but I think you can't do that. I think you have to look at the context in which it was given, and it was given in this whole section of here's what you don't know, and just -- you got to know what you don't know. [. . .] that's the way I heard it. [. . .] I don't think that the jury's going to misunderstand that.

IV. The Grounds of Appeal

A. The appeal against acquittal

[51] The Crown appeal against acquittal rests on a single ground: did the trial judge err in her interpretation of "recording" in s. 162.1(2)?

B. The appeal against conviction

[52] The accused raises three grounds of appeal against conviction. He submits that the trial judge:

(1) erred in failing to address the defence objections to the Crown's closing submissions;

(2) erred in instructing the jury that

Consent is the voluntary agreement of [the complainant] to take part in the sexual activity that she said happened. In other words, [the complainant] wanted [the accused] to do what he did. (Emphasis added); and

(3) improperly ruled on the s. 276 application.

V. The Appeal Against Acquittal

[53] For ease of reference, I set out ss. 162.1(1) and (2) again below. [page277]

Publication, etc., of an intimate image without consent

162.1(1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) of an offence punishable on summary conviction.

Definition of intimate image

(2) In this section, intimate image means a visual recording of a person made by any means including a photographic, film or video recording,

(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;

(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and

(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.

A. The parties' positions

1. The Crown's position

[54] The Crown makes two overriding submissions on this issue.

[55] First, the Crown says that the trial judge erred in law by interpreting "recording" in s. 162.1(2) as requiring proof that the image captured by the device is capable of reproduction. Based on the text of s. 162.1, it argues that "recording" should be interpreted as any visual display created by any means. It says that s. 162.1 was enacted to modernize the Criminal Code and criminalize sexual exploitation committed through technology. Further, it says that Parliament carefully circumscribed the parameters of the offence in s. 162.1(2)(a)-(c) based on that purpose: to make it criminal to share, by any means, an image without the subject's consent, if that image is sexually explicit and engages the subject's reasonable expectation of privacy. It contends that it is the content of the image that matters, not the medium used to share the image.

[56] Second, the Crown submits that the trial judge erred in finding that there was no evidence on how an iPhone works. It says that, contrary to the trial judge's view, the evidence of the complainant and DC Angus was sufficient and there was no need for the Crown to call expert evidence about how iPhones or [page278] FaceTime work, or to prove that the FaceTime images were capable of reproduction.

2. The accused's position

[57] The accused submits that the plain meaning of "recording" implies the creation of an image that can be stored, viewed later and reproduced. This, he contends, excludes "evanescent" images that are transmitted and viewed a single time and are thereafter unavailable. He contends that to record something is to capture an event that happens at a point in time and to preserve it in a more lasting form. He argues that the Crown's interpretation of recording sidesteps its essential meaning which is that an event is preserved and available for later viewing. He points to the trial judge's comparison of a FaceTime call with a phone call to illustrate this, and says that no one thinks of a phone call as a "recording".

B. Analysis

[58] In my view, the trial judge erred in her interpretation of "recording" in s. 162.1(2) and in her approach to the sufficiency of the evidence.

1. The meaning of "recording" in s. 162.1(2)

[59] It is trite law that the modern approach to statutory interpretation requires that "the words of an Act must be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Bell ExpressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, at para. 26.

[60] The starting point is to determine the ordinary meaning of the text: R. v. Wookey, [2016] O.J. No. 4158, 2016 ONCA 611, 351 O.A.C. 14, at para. 24. At para. 25 of Wookey, quoting from Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis Canada, 2014), Pharmascience Inc. v. Binet, [2006] 2 S.C.R. 513, [2006] S.C.J. No. 48, 2006 SCC 48, at para. 30, and Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., 1993 31 (SCC), [1993] 3 S.C.R. 724, [1993] S.C.J. No. 114, at p. 735 S.C.R., this court states that ordinary meaning "refers to the reader's first impression meaning, the understanding that spontaneously comes to mind when words are read in their immediate context" and is "the natural meaning which appears when the provision is simply read through". In other words, the "plain" or "ordinary" meaning of a word is not dictated by its dictionary meaning nor is it frozen in time. [page279]

[61] What, then, is the ordinary meaning of the text of ss. 162.1(1) and (2)? Section 162.1(1) makes it an offence for a person to knowingly disseminate an "intimate image" of a person without their consent. Section 162.1(2) provides that "intimate image" means a "visual recording of a person made by any means including a photographic, film or video recording".

[62] On a plain reading of ss. 162.1(1) and (2), it appears to me that the non-consensual visual sharing of an intimate image is prohibited -- regardless of whether the intimate image being shared has the "capability of reproduction". Further, the natural or ordinary meaning of "visual recording" includes a FaceTime call.

[63] My plain reading of these provisions begins with the observation that with traditional technology, such as a camera, the capture and display of the visual image are separate acts. But, with a livestream application such as FaceTime, the two are simultaneous. Livestream transmissions enable a caller to capture visuals (i.e., record intimate images) and share them simultaneously. Thus, a FaceTime call in which the caller's iPhone is pointed at a person is a visual recording of that person, within the meaning of s. 162.1(2), because that person's image is captured on the caller's phone and transmitted to the recipient's screen where it is displayed. How could the recipient observe the person if that person's image had not been recorded and transmitted to them? It matters not whether the recipient reproduces the person's image or could reproduce it; the recipient has seen the person's image because the caller recorded it and sent it to them. Thus, the FaceTime call is the visual recording of the person.

[64] In times gone by, the word "recording" may have been confined to visuals that could be reproduced and viewed at a later time or place. Photographs and videotapes are examples of that. However, five considerations militate against such a restrictive interpretation of "recording" in s. 162.1(2).

[65] First, the language of s. 162.1 is intentionally broad. Section 162.1(1) prohibits a wide range of conduct, both overt acts of dissemination (i.e., publishes, distributes, transmits, sells) and the facilitation of acts of dissemination (makes available or advertises). And, s. 162.1(2) provides that a visual recording of a person can be "made by any means".

[66] Second, FaceTime calls are directly caught by the language of s. 162.1(2), in which "intimate image" is defined to mean "a visual recording . . . including . . . a video recording" (emphasis added). As I have just explained, in a FaceTime call where the caller focuses the camera in their iPhone on a person, the caller is transmitting a video recording of that person to the recipient of the call. [page280]

[67] Third, there is nothing in s. 162.1 to suggest that the intimate image being shared must be capable of reproduction. The harm is in the non-consensual sharing of an intimate image -- regardless of whether the recipient of the recording (call) reproduces it or can reproduce it. Even if there are no copies and no opportunity to make them, as the sentencing court observed in R. v. B. (J.), [2018] O.J. No. 4133, 2018 ONSC 4726 (S.C.J.), at para. 44, the act of sharing the images in the first place is an attack on the victim's privacy, basic human dignity and sense of self-worth.

[68] Fourth, restricting the meaning of "recording" to outdated technology -- by requiring that it be capable of reproduction -- would fail to respond to the ways in which modern technology permits sexual exploitation through the non-consensual sharing of intimate images. In so doing, it would undermine the objects of s. 162.1 and the intention of Parliament in enacting it.

[69] Section 162.1 is a relatively new offence. It came into effect as part of Bill C-13, Protecting Canadians from Online Crime, S.C. 2014, c. 31, enacted in 2014 and proclaimed into force on March 9, 2015. The bill -- part of the federal government's initiative against cyber-bullying -- was introduced when two young women tragically took their lives after intimate images of them had been shared online without their consent. These cases and others highlighted the growing trend to use technology as a tool of harassment and sexual exploitation, and the justice system's inability to respond because no offence existed at that time which addressed that type of conduct.²

[70] Sexual offences are enacted to protect personal autonomy and sexual integrity of the person: R. v. Jarvis, [2019] 1 S.C.R. 488, [2019] S.C.J. No. 10, 2019 SCC 10, at para. 122. Giving "visual recording" a broad and inclusive interpretation best accords with the objects of s. 162.1 and Parliament's intention in enacting it.

[71] Finally, I accept the Crown's submission that the trial judge's interpretation of s. 162.1 would base culpability on the medium used to share the intimate image, rather than on whether the conduct breached the victim's sexual integrity and privacy. This, it submits, would lead to arbitrary and unreasonable distinctions. I agree. The following example demonstrates this. A person who takes a picture of a naked woman in [page281] a changeroom and gives the photo to one friend would be guilty of an offence under s. 162.1. However, if that person livestreamed the image of the woman on a website where it can be viewed an indefinite number of times by an indefinite number of people but never saved, on the trial judge's interpretation, the person would not be guilty of an offence under s. 162.1.

[72] In conclusion, applying the modern principles of statutory interpretation, ss. 162.1(1) and (2) make it an offence to knowingly publish, distribute, transmit, sell, make available or advertise an intimate image of a person, without the person's consent. Intimate image means a "visual recording" of a person "made by any means". Interpreting "visual recording" broadly and in a common-sense and purposive manner, prohibits the non-consensual visual sharing of an image, if the image is sexually explicit and engages the subject's reasonable expectation of privacy. The ordinary meaning of "visual recording" does not require proof that the intimate image that was shared is capable of reproduction. Thus, a FaceTime call is captured by s. 162.1.

[73] In reaching this conclusion, I reject my colleague's analysis based on the voyeurism offence in s. 162 of the Criminal Code. He suggests that the accused could have been held answerable under that provision. I disagree. Section 162 applies when one person "surreptitiously" observes or makes a visual recording of another, in certain circumstances. There is nothing surreptitious about the accused's alleged act of livestreaming images of the complainant as she vomited into a toilet, while naked. She was fully aware that the accused was pointing his iPhone at her and making a FaceTime call. She was simply too ill at the time to be able to leave the toilet.

[74] I respond also to my colleague's suggestion that we are to infer, based on the wording of s. 162, that Parliament used the word "recording" in s. 162.1(2) with the deliberate intention of excluding livestreaming. There is no basis for such an inference. First, Parliament would have no discernible purpose for excluding livestreaming from the offence. Second, this suggestion fails to consider the word "recording" within the context of each of the two provisions. In s. 162, the offence is the surreptitious observation or visual recording of a person in certain circumstances. In s. 162.1, the offence is the non-consensual sharing of an intimate image, where intimate image means a visual recording of a person made by any means. It is a false dichotomy to suggest that because Parliament provides two methods of committing the offence in s. 162, it could not have intended that the digital recording of an intimate image through a FaceTime transmission was a visual recording for the purposes of s. 162.1. As I explain [page282] above, a FaceTime call falls within the meaning of "visual recording" in s. 162.1(2).

2. Sufficiency of the evidence

[75] The trial judge said that there was "an absence of evidence" before her about how a FaceTime call captures images that would amount to a "recording" within the meaning of s. 162.1(2). She also stated that "despite the ubiquitous nature of iPhones" she was "not prepared to take judicial notice about the technical workings and application of a FaceTime call". I do not agree with either statement.

[76] There was evidence before the trial judge about how a FaceTime call works. Both the complainant and DC Angus gave evidence on this. They indicated that a FaceTime call allows a person to film their surroundings and transmit those images, instantaneously, to the recipients of the FaceTime call, who are then able to view the images. I would add that DC Angus did not testify, as the trial judge indicated, that a FaceTime call is "identical" to a telephone call except that it has a visual component, as well as an auditory one. He did make the comment that a FaceTime call is "like a phone call" with a video component. However, he made that comment in the context of explaining the ease with which FaceTime calls can be made. In his testimony, DC Angus was very clear that, in a FaceTime call, the caller can choose to show the recipient whatever the caller points their back camera at. Self-evidently, the ability to show others what is going on around you makes a FaceTime call significantly different than a telephone call.

[77] There was no need for additional evidence and certainly not that of experts. In saying this, I rely on R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, at pp. 23-24 S.C.R., in which the Supreme Court explains the necessity pre-condition for the admission of expert evidence. The court said that expert evidence is necessary when it provides information likely to be outside the experience and knowledge of a judge or jury and that information is needed to enable the trier of fact to appreciate the matters in issue due to their technical nature. In short, as the court stated, expert evidence is necessary on matters [at para. 22] "ordinary people are unlikely to form a correct judgment about, if unassisted by persons with specialized knowledge".

[78] The general functioning of iPhones today is not the stuff of experts. iPhone users can explain what applications are and what use they make of them. And the triers of fact do not need the assistance of persons with specialized knowledge in order to form correct judgments on matters relating to video messaging applications such as FaceTime. The fact that FaceTime sends and [page283] receives video images is uncontroversial. So, too, is the capability of the recipient of a FaceTime call to take and print out a screen shot: see, for example, Sylvestre v. Sylvestre, [2018] S.J. No. 157, 2018 SKQB 105, at para. 16.

[79] The only question in this case was whether there was sufficient evidence for the jury to conclude that the accused, in one or more of the FaceTime calls, made available to the recipient of the call or calls, the image of the complainant while she was naked and vomiting in the toilet. In my view, there was and the matter should have gone to the jury.

[80] Accordingly, I would allow the appeal against acquittal, set aside the order for a directed acquittal, and order a new trial on the count of dissemination of intimate images contrary to s. 162.1 of the Criminal Code.

VI. The Appeal Against Conviction

Issue #1 No error in the trial judge's treatment of defence objections to Crown's closing submissions

A. The parties' positions

1. The accused's position

[81] It will be recalled that, at trial, the defence objected to two comments in the trial Crown's closing submissions. The First Impugned Comment was the trial Crown's comment that, in his closing submissions, defence counsel read parts of the preliminary inquiry transcript "not in chronological order". The Second Impugned Comment was that the jurors were not in a position to assess the nuances of the complainant's state when testifying at the preliminary inquiry, including whether she was crying, breaking down, or "completely disassociated". The trial judge did not give a correcting instruction on either impugned comment.

[82] Before this court, the accused seeks a new trial on the basis that the trial judge erred in law in failing to give a corrective instruction for those comments.

[83] In respect of the First Impugned Comment, the accused submits that the trial judge's ruling was unfair to him because it left uncorrected the Crown's "implicit denigration of defence counsel's fairness to the complainant". And, he says, the First Impugned Comment was factually incorrect because defence counsel had, in fact, questioned the complainant in the sequence in which her story had emerged at the preliminary inquiry.

[84] The accused submits that the trial judge's ruling on the Second Impugned Comment was incorrect because, without an evidentiary foundation for such a claim, the Crown had no right [page284] to claim that the complainant could have been crying, breaking down or "completely disassociated" when she gave her evidence at the preliminary inquiry.

2. The Crown's position

[85] In respect of the First Impugned Comment, the Crown submits that it did not, expressly or by implication, suggest that defence counsel had been unfair or misleading. At most, the Crown says, the First Impugned Comment contained one factual inaccuracy, namely, that defence counsel read parts of the preliminary inquiry transcript out of chronological order. The Crown says this minor misstatement -- which was not inflammatory or demeaning -- did not require a corrective instruction and did not cause any prejudice to the accused.

[86] In relation to the Second Impugned Comment, the Crown submits that it did not invite the jury to speculate on the complainant's emotional state. She says that the comment was made as part of the trial Crown's direction to the jury to afford the complainant's preliminary inquiry testimony minimal weight and, further, that it was a fair response to the accused's arguments that the complainant should be disbelieved because of her testimony at the preliminary inquiry.

B. Analysis

[87] I would reject this ground of appeal. In my view, the trial judge made no error in her treatment of the impugned comments. Neither of those comments deprived the accused of a fair trial.

1. The governing legal principles

[88] The following points provide the necessary structure for assessing this ground of appeal.

[89] First, in R. v. Manasseri (2016), 132 O.R. (3d) 401, [2016] O.J. No. 5004, 2016 ONCA 703, at paras. 103-106, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 513, this court said the following about Crown counsel's closing submissions in a jury trial:

(1) the Crown is entitled to advance its case forcefully but, in doing so, must eschew inflammatory rhetoric, demeaning commentary, sarcasm and legally impermissible submissions that undermine trial fairness;

(2) the Crown must limit its means of persuasion to facts found in the evidence adduced before the jury; and

(3) the Crown is expected to be rigorous but fair, persuasive and responsible. [page285]

[90] Second, when complaints are made that the Crown's closing submissions exceeded permissible limits, the critical issue is whether what was said deprived the accused of a fair trial. To determine this issue, an appellate court must consider the impugned comments in the milieu in which they were said and the context of the entire trial, as well as any judicial response to them: Manasseri, at para. 106.

[91] Third, the trial judge does not have an inflexible obligation to correct every misstatement of the evidence by counsel: R. v. Jones, [2011] O.J. No. 3979, 2011 ONCA 584, 277 C.C.C. (3d) 143, at para. 38.

2. The first impugned comment

[92] Before placing the First Impugned Comment in context, I note that any inaccuracy in it was entirely inadvertent on the part of the Crown. This can be seen by considering the exchange between the trial judge and defence counsel after he objected to the First Impugned Comment.

[93] In the "to and fro" following defence counsel's objection, the trial judge said that defence counsel had put the preliminary inquiry transcripts to the complainant out of order (as he was entitled to). Defence counsel agreed, saying he had jumped "back and forth" in his cross-examination. As it turned out, defence counsel had put the transcripts to the complainant in chronological order and he also read the parts of the preliminary inquiry transcript in chronological order in his closing submissions. However, when the trial judge made her ruling on the First Impugned Comment, it was on the mistaken understanding -- shared by defence counsel -- that, during cross-examination, he put the preliminary inquiry transcript to the complainant out of order.

[94] With that shared misunderstanding in mind, the trial judge ruled that if she were to give a corrective instruction to the jury and tell them that defence counsel had read from the preliminary inquiry transcript in chronological order, she would also tell the jury that those transcripts had not been put to the complainant in chronological order. As the trial judge explained, she felt such an instruction was necessary for it to be balanced and to keep the jury focused on the evidence. Defence counsel resisted that qualification in the proposed corrective instruction. Consequently, the trial judge did not give the correcting instruction.

[95] It is important to also consider the First Impugned Comment in context. Both defence counsel and the trial Crown referred to the complainant's evidence at the preliminary inquiry in their closing submissions. Defence counsel reviewed the parts [page286] of the preliminary inquiry transcript that had been put to the complainant in cross-examination and described her answers as "profoundly dishonest" and her explanation for the inconsistency as "self-serving". He argued that the complainant's late disclosure of the oral sex was a sign that her evidence at trial could not be trusted.

[96] In her closing submissions, the trial Crown urged the jury not to place undue weight on the complainant's evidence at the preliminary inquiry. She acknowledged that the complainant had failed to mention the oral sex until her cross-examination at the preliminary inquiry but argued the circumstances of the complainant's disclosure were understandable and did not undermine her credibility.

[97] It is within this context that the trial judge found the First Impugned Comment to be "an incredibly minor point". In her view, "diving into it would only serve to distract the jury". Further, she stated, the First Impugned Comment did not negatively reflect on defence counsel and did not warrant a correcting instruction. I agree with the trial judge on all these points.

[98] The First Impugned Comment was not inflammatory or demeaning, and caused no prejudice to the accused. It was a minor factual inaccuracy made within the context of a valid point: that excerpts from a transcript do not tell a complete story and that what mattered was the complainant's explanation of the inconsistency at trial.

3. The second impugned comment

[99] The trial judge dismissed the defence objection to the Second Impugned Comment on the basis that defence counsel had "cherry picked" it from the Crown's closing. The trial judge, having heard both defence counsel's closing and that of the trial Crown, understood the Second Impugned Comment to simply be part of the Crown's reminder to the jury that it had heard and seen the complainant give her testimony at trial but not at the preliminary inquiry and that the jury did not know what the complainant's emotional state had been at the preliminary inquiry.

[100] I accept the trial judge's determination of this matter. As the Supreme Court stated in R. v. Rose (1998), 1998 768 (SCC), 40 O.R. (3d) 576, [1998] 3 S.C.R. 262, [1998] S.C.J. No. 81, at para. 126, the trial judge is in the best position to assess the significance of the remarks of counsel, to determine if they need to be corrected and, if necessary, to correct inaccuracies and remedy any unfairness that may arise from the addresses of counsel. The trial judge did not see the trial Crown's reference to the fact that the complainant might have been crying or breaking down at the [page287] preliminary inquiry as an invitation to the jury to speculate about the complainant's demeanour. Rather, she viewed it as part of explaining the inability of a transcript to convey the complainant's emotional state when testifying at the preliminary inquiry.

[101] There was nothing wrong with the Crown reminding the jury that nuances and emotion are lost when considering transcripts. With transcripts, the trier of fact is unable to assess the witness's demeanour when testifying and is therefore "left without the potentially important insights that the ability to observe the witness when testifying can afford to a fact finder in the assessment of that witness's credibility": R. v. Rowe, [2011] O.J. No. 5382, 2011 ONCA 753, 281 C.C.C. (3d) 42, at para. 43.

[102] This is not a case like R. v. Iyeke, [2016] O.J. No. 2430, 2016 ONCA 349, where the misstatement was the centrepiece of the Crown's closing address. In Iyeke, the accused was charged with possession of a firearm. The Crown told the jury in its closing submissions that a confidential informant had told police that the accused had a gun. The statement was wrong. In allowing the appeal, this court noted that the confidential tip was the "centrepiece" of the Crown's closing address and repeatedly emphasized by the Crown as a powerful piece of incriminating evidence. In the present case, the Second Impugned Comment was nothing close to being the centrepiece of the Crown's closing submission: Crown counsel mentioned it only once and then only briefly.

[103] I would add that a contextual consideration of the Second Impugned Comment must include that, after the defence closing, Crown counsel asked the trial judge for a corrective instruction on the tone that defence counsel had added when reading the extracts from the preliminary inquiry transcripts. The trial judge replied that the Crown could make that argument before the jury and, significantly, defence counsel did not object.

[104] I would dismiss this ground of appeal. To the extent that the Second Impugned Comment may have veered into impropriety through its reference to crying and breaking down, in the context of the whole address, it did not deprive the accused of a fair trial.

Issue #2 No error in the trial judge's instruction on consent

[105] For ease of reference, I set out again the impugned instruction on consent:

Consent is the voluntary agreement of [the complainant] to take part in the sexual activity that she said happened. In other words, [the complainant] wanted [the accused] to do what he did.

(Emphasis added) [page288]

A. The parties' positions

1. The accused's position

[106] The defence made no objection to the trial judge's instruction on consent at trial. Before this court, however, the accused submits that consent and wanting are not synonymous and, while jury instructions equating the two concepts are common, the use of the word "wanted" in the impugned instruction misled the jury into understanding that subjective desire was a necessary component of consent. He observes that a person might voluntarily agree to do acts that they do not want to perform, for a variety of motivations. For example, a partner might voluntarily agree to a sexual act she does not want out of affection or in the expectation of reciprocal pleasure.

[107] As a result of the impugned instruction, the accused submits that the jury might have convicted on the basis that the complainant was strongly attracted to him and, voluntarily though unhappily, performed oral sex despite not wanting to. In support of his submission, the accused points to case law where courts have distinguished the two concepts. For example, the accused quotes from Dawe J. in R. v. M. (S.), [2019] O.J. No. 6208, 2019 ONSC 7073 (S.C.J.), at para. 91:

Although G.C. testified that he never wanted to have sex with S.M., the subjective mental state of consent under Ewanchuk is not synonymous with "subjective desire". People can consent to do something they would rather not do if they decide, on balance, that the reward they will get for doing the thing outweighs their subjective preference not to do it.

(Emphasis added)

[108] And in R. v. Shimizu, 2010 CarswellOnt 10397, at paras. 33-34, Croll J. found that although the complainant did not want to engage in sexual activity, the Crown had failed to prove lack of consent beyond a reasonable doubt because the complainant may have engaged in the sexual activity for the purpose of career advancement.

2. The Crown's position

[109] The Crown acknowledges that consent was a live issue in relation to the oral sex allegation. It points to the trial judge's lengthy instruction on the meaning of consent, in which she clearly explained that the jury had to be satisfied that the Crown had proven beyond a reasonable doubt that the complainant had not consented and that the accused knew she did not consent.

[110] The Crown contends that, in this case, there was no need for the trial judge to distinguish between the closely related [page289] concepts of "voluntary agreement" and "subjective desire". The complainant said she did not want to perform oral sex and did not consent. The accused said the complainant wanted to perform oral sex and consented. In other words, there was no interpretation of the evidence that would have allowed the jury to conclude that the Crown had proven the complainant did not want sexual contact but failed to prove that there was not voluntary agreement to sexual contact.

B. Analysis

[111] I would reject this ground of appeal. While in some cases a trial judge may be required to differentiate between voluntary agreement and subjective desire (i.e., wanting), this was not such a case. In the circumstances of this case, the trial judge did not err in using the word "wanted" in the impugned instruction.

[112] In assessing whether the jury might have been misled by the impugned instruction, I begin by considering it in the context of the overall instruction on consent. The only time that the trial judge used the word "wanted" was in the impugned instruction. Apart from that one instance, the trial judge repeatedly instructed the jury that they had to be satisfied that the complainant voluntarily agreed to engage in the sexual activity in question. In so doing, the trial judge used the statutory definition of consent in s. 273.1(1) of the Criminal Code. For example, the trial judge instructed the jury on the meaning of consent as follows:

It involves knowledge of what is going to happen, and voluntary agreement to do it or let it be done. A voluntary agreement to engage in sexual activity is not valid if what [the complainant] said or did indicated to [the accused] that she did not agree to participate in that activity. A voluntary agreement to engage in sexual activity is also not valid, if [the complainant] had originally agreed to participate in sexual activity but changed her mind and expressed in words or conduct, or both, that she did not agree to continue to participate in the same or different sexual activity.

(Emphasis added)

[113] Next, as the accused acknowledges, a jury instruction equating consent with "wanting" is common. In this regard, two things are worthy of note. First, in the seminal case of R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, [1999] S.C.J. No. 10, at paras. 23 and 48, the court described the actus reus of the offence of sexual assault as "unwanted sexual touching" and said that, for the purposes of the actus reus, consent means that the complainant in her mind "wanted the sexual touching to take place". Second, the charge in this case tracked the language in Watt's Manual of Criminal Jury Instruction, 2nd ed. (Toronto: Carswell, 2015, Final 271), at p. 599. [page290]

[114] With these considerations in mind, I ask whether the impugned instruction might have prejudiced the accused. In my view, it could not have: there was nothing in the evidence upon which the jury could conclude that the complainant did not want to perform oral sex but she nonetheless voluntarily agreed to do so nor did defence counsel ever suggest that the complainant engaged in the sexual activity for any purpose other than subjective desire. The accused's version of events was that the complainant initiated oral sex and that intercourse never took place.

[115] The evidence only permitted the jury to make one of two findings: that the complainant did not want to perform oral sex and did not agree to do so or that she agreed to perform oral sex and wanted to do so. Accordingly, the jury could not have concluded that the Crown had proven the complainant did not want sexual contact but had not proven that there was no voluntary agreement to sexual contact.

[116] The cases of M. (S.) and Shimizu, relied on by the accused, are readily distinguishable from the present case. In both those cases, the trial judge found that there was a possibility that the complainant agreed to the sexual activity for a reason other than pleasure or affection. In M. (S.), the reason was money and in Shimizu, it was career advancement. In this case, there was no evidence that the complainant consented to engage in sexual activity for a reason other than a subjective desire nor was there a theory of the case presented to the jury that she consented for any reason other than subjective desire.

[117] While the absence of defence objection is not determinative, the failure to object may be indicative of the seriousness of what is later said to be an error: R. v. D. (R.), [2020] O.J. No. 112, 2020 ONCA 23, at para. 15. In my view, it is indicative in this case.

[118] Accordingly, in my view, the jury charge was clear and proper on the issue of consent and I would dismiss this ground of appeal.

Issue #3 No error in the trial judge's ruling on the s. 276 application

In light of the mandatory ban on publication contained in s. 278.95 of the Criminal Code, paragraphs 119 to 127 [in the original document] have been redacted from the public version of this decision.

[128] Accordingly, this ground of appeal fails. [page291]

Disposition

[129] For these reasons, I would allow the appeal against acquittal, set aside the order for a directed acquittal, and order a new trial on the count of dissemination of intimate images contrary to s. 162.1 of the Criminal Code. And, I would dismiss the appeal against conviction.

[130] B.W. MILLER J.A. (dissenting): -- I agree with my colleague's reasons and disposition on the conviction appeal. I would, however, dismiss the Crown appeal of the acquittal on the charge of disseminating an intimate image.

[131] The centrepiece of this Crown appeal is the claim that a person who receives a FaceTime video call -- a live event -- is in fact viewing a recording. This is obviously wrong on any conventional understanding of the meaning of a "recording". No one would ever speak in such a way. The Crown nevertheless advances an argument that s. 162.1 of the Criminal Code, R.S.C. 1985, c. C-46 should be interpreted such that "any visual display" -- including any display of unrecorded, live-streamed images -- is a "visual recording". The statutory interpretation argument fails, not simply because of the stipulation of a novel and untenable definition of "recording". More fundamentally, as explained below, the argument contradicts basic principles of statutory interpretation.

[132] In short, although the accused's alleged actions would have grossly violated the complainant's dignity -- and he arguably would have been answerable to charges under s. 162 of the Criminal Code -- the elements of s. 162.1 were not made out, the Crown is not free to reimagine the elements of the offence as though it were a common law offence, and the trial judge made no error in returning a directed verdict of acquittal on those charges.

I. Statutory Interpretation Methodology

[133] I begin with this observation: legislating is reasoned activity. Legislating results in a legislative text intended to communicate the content of a lawmaking decision to the intended audience: Stéphane Beaulac, Handbook on Statutory Interpretation: General Methodology, Canadian Charter and International Law (Markham, Ont.: LexisNexis, 2008), at pp. 8-10; Cameron Hutchison, The Fundamentals of Statutory Interpretation (Toronto: LexisNexis, 2018), at p. 48. Legislation establishes and specifies legal rights and obligations. It is intended to guide behaviour, and in order to guide behaviour it must be intelligible to the intended audience. [page292]

[134] The judicial role in interpreting legislation is obviously different in kind from the role of the legislature in enacting legislation. Statutory interpretation is a matter of ascertaining the change in the law the legislature intended to communicate through the legislative text. The task of interpretation neither contemplates nor permits judicial reordering of priorities or substituting other, perhaps better means to achieving Parliament's purpose. Judges are not to be co-authors with the legislature, nor are they to second-guess the means that Parliament has chosen to achieve its aims, no matter how beneficial the judicial amendments may appear to be: Williams v. Canada (Minister of Public Safety and Emergency Preparedness), [2017] F.C.J. No. 1267, 2017 FCA 252, 417 D.L.R. (4th) 173, at paras. 41-52, per Stratas J.A.; Canada v. Cheema, [2018] F.C.J. No. 199, 2018 FCA 45, 420 D.L.R. (4th) 534, at paras. 73-75, per Stratas J.A, leave to appeal to S.C.C. refused [2018] S.C.C.A. No. 137, [2019] G.S.T.C. 12. See also Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at pp. 28-34.

A. The modern or orthodox principle

[135] Although the practice of statutory interpretation can be difficult, the objective is not. Statutory interpretation is concerned with determining the intention of Parliament. As Driedger put it in Construction of Statutes, at pp. 105-106:

In the end, therefore, as Chief Justice Tindal said in the Sussex Peerage Case "the only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act." The construction of statutes means finding that intention.

(Emphasis added)

[136] More recently, Professor Richard Ekins reiterated that "[o]rthodox principles of statutory interpretation centre on recognising the intended meaning of the enacting Parliament": Richard Ekins, "Sentences, Statements, Statutes" (2016) Analisi e Diritto 321, at p. 322. See also Hutchison, at p. 48; Beaulac, at p. 8; and Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Toronto: LexisNexis, 2014), at §2.5-2.6.

[137] The practical methodology for ascertaining intended meaning was long established in the practice of Canadian courts before Driedger summarized it and gave it the label of modern, or orthodox, principle: Beaulac, at p. 30; see also Michael Plaxton, Sovereignty, Restraint, and Guidance: Canadian Criminal Law in the 21st Century (Toronto: Irwin Law, 2019), at pp. 95-97. The Supreme Court has expressly adopted Driedger's formulation of the "modern principle" in hundreds of cases. In R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757, [page293] [2002] S.C.J. No. 76, 2002 SCC 73, at para. 77, Iacobucci and Major JJ. distilled Driedger's modern principle as follows:

The approach to statutory interpretation can be easily stated: one is to seek the intent of Parliament by reading the words of the provision in context and according to their grammatical and ordinary sense, harmoniously with the scheme and the object of the statute (Interpretation Act, R.S.C. 1985, c. I-21, s. 12; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27; R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688; E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87).

[138] At the Federal Court of Appeal, Stratas J.A. further distilled the modern principle to its bare essentials, providing the useful shorthand of "text, context, and purpose": Williams, at para. 41; Cheema, at para. 73.

B. Text, context and purpose

[139] There is no sequential ordering of the modern principle factors, beyond beginning with the text of the statute to be interpreted. The factors are closely related and need not be addressed separately in every case: Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, at para. 31. Their unity is in serving the same inquiry: what can the interpreter ascertain about Parliament's intention? What changes to the rights and obligations of persons did Parliament intend through the legislation enacted?

[140] As Driedger explains, at pp. 2 and 105, the first step in discerning what Parliament intended is to consider the words it used in the context it used them, giving those words their grammatical and ordinary meaning: see also Sullivan, at §3.7; Hutchison, at pp. 46-47. Absent an ambiguity, which requires the interpreter to distinguish among multiple senses of the same word, the text will normally dominate interpretation, although it may not always be sufficient: Canada Trustco Mortgage Co. v. Canada, [2005] 2 S.C.R. 601, [2005] S.C.J. No. 56, 2005 SCC 54, at para. 10. Reading the words of a statute in the context of the legislative scheme as a whole can help with understanding parliamentary intent, as can considering what it is that Parliament intended to achieve through the statute: Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2.

C. A note about ordinary meaning

[141] Just as with every other type of communication, in the context of legislation the same word can be used to convey vastly different meanings. Although attention to context will usually [page294]narrow the potential senses in which a word is used, there may remain more than one possibility. Even within the same sense or definition, a word can have broader and narrower meanings. When it comes to interpreting the words of a statute used in context, an interpreter is to presume that Parliament used the ordinary meaning of words, rather than some technical, arcane, or exotic sense, unless the context suggests that a non-ordinary meaning was intended. The reason for the presumption is obvious enough: because legislation is an act of communication, communication is most likely to succeed where there is a shared understanding of the meaning of the words used. As Professor Michael Plaxton explained in his text, Sovereignty, Restraint, and Guidance: Canadian Criminal Law in the 21st Century, at p. 97:

Confronted with a statutory provision for the first time, we proceed on the basis that Parliament chose the text it did, not with a view to confusing or eluding its readers but intending to be understood by its audience. With that in mind, we generally assume that Parliament intended a term or phrase to be given its "ordinary meaning" and not some obscure, technical, bizarre, or idiosyncratic meaning.

[142] Ordinary meaning is often expressed in terms of the natural or first impression that arises spontaneously when words are read in context: see, e.g., Pharmascience Inc. v. Binet, [2006] 2 S.C.R. 513, [2006] S.C.J. No. 48, 2006 SCC 48, at para. 30. As a matter of first impression, the context in which a word is used will prompt a reader to quickly and subconsciously discard many inapposite senses of a word. But Pharmascience should not be taken as suggesting that the ordinary meaning of a word is a function of its reader's subjective reaction, as though a statute were a type of Rorschach test. Reading is a matter of impression, but it is the impression that ought to be formed in the mind of a competent speaker of the language by a particular text that uses the conventions of language shared between the legislature and the intended audience: Pierre-André Côté, Stéphane Beaulac & Mathieu Devinat, The Interpretation of Legislation in Canada, 4th ed. (Toronto: Carswell, 2011), at pp. 277-78. A reader is directed to consider the first impression because an accurate first impression should result from effective communication.

[143] However, as Hutchison notes, at p. 45, ascertaining the ordinary meaning of a provision is not effortless: "The phrase 'ordinary meaning' is deceptive in the sense that uncovering the meaning of words in a statute is not a simple or routine task. Indeed, it is often a difficult and probative exercise." Even where language is straightforward, the context may carry a more nuanced meaning than might be expected: Hutchison, at pp. 45-47. [page295]

[144] Statutory interpretation is an exacting scholarly discipline. It requires a comprehensive understanding of canons of interpretation and other presumptions that help the reader understand what it is that Parliament intended. There is a rich body of law and scholarship to guide interpretation, even in "easy" cases. Accordingly, before turning to the legislative provision in question in this appeal, and the trial judge's treatment of it, I will address three complications to assessing ordinary meaning that are potentially relevant.

[145] First, dictionaries or other resources -- such as other works of lexicographers and others who study language use -- can be useful in ascertaining ordinary meaning. They provide some objective evidence of the shared conventions of language through which Parliament communicates. But dictionary definitions must be approached with caution. Among other reasons, this is because dictionaries aim to provide a comprehensive catalogue of all of a word's possible uses. The legislature, however, will not have intended all of these possible uses, and the multiplicity of potential meanings can generate ambiguity and confusion. Even where no ambiguity results, simply applying a dictionary definition to a word taken out of context will result in an erroneously broad interpretation: Sullivan, at §3.31-3.32; Hutchinson, at pp. 45-46. Additionally, dictionaries can sometimes lag behind contemporary language use. It is important to avoid, on the one hand, anachronistic definitions unlikely to have been used by the legislature, and, on the other, new meanings that post-date the legislation. Dictionaries also vary widely in their quality and precision, and it is important to prefer those that are substantial works of scholarship: see "Appendix A: A Note on the Use of Dictionaries" in Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (St. Paul, MN: Thompson/West, 2012), at pp. 415-24. However, the point of the oft-repeated caution about dictionaries is to use them with care, not to neglect them in favour of untutored instinct.

[146] Second, the meaning of the words used will be the meaning that Parliament intended at the time of enactment. The original meaning is fixed and does not change with any subsequent linguistic drift that might occur: Driedger, at p. 163; Sullivan, at §6.10-6.11 This is a requirement of the rule of law: that law be knowable in advance such that persons can make choices and organize their lives in ways that do not to run afoul of it. Criminal liability cannot depend on social facts -- like changing linguistic conventions -- that are outside the control of the legislature or unknowable to an accused at the time of the supposed offence: R. v. W. (D.L.), [2016] 1 S.C.R. 402, [2016] S.C.J. No. 22, 2016 SCC 22, [page296] at paras. 20-21, 57-61. Accordingly, when assessing the meaning of a statutory provision, an authoritative interpreter -- such as a court -- must be concerned with the intended meaning at the time of enactment. As Dickson J. noted in R. v. Perka, 1984 23 (SCC), [1984] 2 S.C.R. 232, [1984] S.C.J. No. 40, at pp. 264-65 S.C.R.:

"The words of a statute must be construed as they would have been the day after the statute was passed . . . " Sharpe v. Wakefield (1888), 22 Q.B.D. 239, at p. 242 (per Lord Esher, M.R.). See also Driedger, Construction of Statutes (2nd ed. 1983) at p. 163: "Since a statute must be considered in the light of all circumstances existing at the time of its enactment it follows logically that words must be given the meanings they had at the time of enactment, and the courts have so held"; Maxwell on the Interpretation of Statutes, supra, at p. 85: "The words of an Act will generally be understood in the sense which they bore when it was passed".

[147] Third, words vary in their level of generality, and the generality of the words chosen by a legislature impacts the breadth of the discretion a legislature intends courts to have in interpreting the legislation. Generality is a key tool that legislatures use in ensuring that legislation is able to address unforeseen or changed circumstances.

[148] In this regard, the discussion in R. v. Perka is instructive. In that case, Parliament had made it an offence to prohibit the possession of Cannabis sativa L. At the time the legislation was passed, the scientific consensus was that there was only a single species of cannabis, and the intention of Parliament in proscribing the possession of Cannabis sativa L. was to proscribe the possession of all species of cannabis. Subsequent developments in botany suggested that what was previously thought to have been a sub-strain of Cannabis sativa L. was actually a different strain. Dickson J. held that Parliament had used Cannabis sativa L. in the Narcotic Control Act, R.S.C. 1970, c. N-1, to denote a category encompassing all strains of cannabis. Parliament's use of the term to denote all strains of cannabis was not impacted by a subsequent change in botanical knowledge and terminology: at pp. 265-66.

[149] Conversely, broad or open-textured language can sometimes be used to establish a category the membership in which is not fixed at the time of enactment and may come to later include things unknown at the time the statute was enacted. In R. v. Perka, supra, at p. 265 S.C.R., Dickson J. gives the example of the Engraving Copyright Act of 1735, which prohibited unauthorized engraving or "in any other manner" copying prints and engravings. In Gambert v. Ball (1863), 32 L.J.C.P. 166, it was held that copying prints "in any other manner" applied to photographic reproduction of prints, even though that process was invented more than a hundred years after the statute was enacted. The key [page297] in Gambert was to discern what the legislature intended by the words it used.

D. What comes next

[150] Ascertaining the ordinary meaning is not the whole of statutory interpretation, but it is a necessary beginning. Although Parliament is presumed to use the ordinary meaning of words, this presumption can be displaced if there is good reason -- supplied by the context or the purpose of the legislation -- to believe that Parliament intended some other meaning. But it must be stressed that this is not a free-standing authority to substitute some better meaning for the one that Parliament intended, even if, to the judicial mind, substitution would better accomplish Parliament's purpose. Throughout, the judicial responsibility is to identify what Parliament intended the words to mean, not what it ought to have said but did not.

II. The Trial Decision

A. The legislation

[151] The accused was charged with disseminating an intimate image of another person, contrary to s. 162.1 of the Criminal Code. Section 162.1(1) provides:

162.1(1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) of an offence punishable on summary conviction.

[152] A definition of "intimate image" is provided in s. 162.1(2):

(2) In this section, intimate image means a visual recording of a person made by any means including a photographic, film or video recording,

(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;

(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and

(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed. [page298]

B. The trial judge's reasoning

[153] The accused brought a motion for a directed verdict of acquittal on the basis that the Crown had failed to meet its burden of establishing that the "image" that was alleged to have been transmitted was an "intimate image" as defined in s. 162.1(2): "a visual recording of a person made by any means". The trial judge allowed the motion on the basis that, as a matter of statutory interpretation, "visual recording" means "any image captured on any device, electronic or otherwise, that has the capability for reproduction". She concluded that a FaceTime call, as "a live real-time transmission to another person, with both an auditory and a video component" is not a visual recording. It is "identical to a phone call with the added component of an image". The trial judge was open to the possibility that despite the evidence before her, it was possible that FaceTime operated by recording images. But she was unwilling to take judicial notice of this technical aspect of the operation of FaceTime, and required evidence on this point.

III. Analysis

[154] Having surveyed the appropriate methodology and reviewed the impugned legislation, I turn to considering how the Crown's arguments accord with the text, context and purpose of s. 162.1.

A. Text

[155] The Crown argues that the trial judge misinterpreted s. 162.1(2) in understanding a visual recording as an image of some permanence that is capable of reproduction. The Crown argues that a visual recording should be interpreted as "any visual display created by any means".

[156] The Crown faults the trial judge for simply asserting an ordinary or common sense meaning of visual recording without providing any source or explaining how she arrived at that conclusion.

[157] If this was how the trial judge reasoned, it would have been a methodological error. Where there is a genuine dispute as to the meaning of a key term, a judge may not resolve the dispute by simply stipulating a definition.

[158] But although the Crown makes much of the fact that the trial judge did not provide a source for her definition of "visual recording" in her oral reasons, there is no real mystery here. The transcript of the oral submissions makes matters abundantly clear. Counsel for the accused had put definitions before the trial [page299] judge from two dictionaries, both of which defined "recording" in terms of a degree of permanence and capacity for reproduction. One could also consider a more authoritative source, such as the Oxford English Dictionary, which provides (among other definitions): "a series of sounds (esp. a musical performance) or video images stored in permanent form for later reproduction" (emphasis added).

[159] Ironically, it is the Crown that makes the methodological error it attributes to the trial judge: it simply asserts a definition -- "a visual display created by any means" -- for which there is no lexicographic support. No support is offered from any dictionary, or the work of any lexicographer, or anyone else who studies contemporary language use. The term does not appear to have ever been used in such a way by any identifiable person or group. Yet the Crown offers this invented meaning as the basis for a criminal conviction.

[160] This is remarkable.

[161] The submission would be all the more remarkable had the Crown followed the argument to its terminus and concluded that this newly minted ordinary meaning -- one never before used by any person -- is the meaning that Parliament intended when the statute was enacted in 2015.

[162] The Crown is not unaware of the difficulties of arguing for an ordinary meaning that does not correspond to actual language use. But as explained below, the argument it mounted to blunt the objection does not succeed. From the Crown's factum:

However, the "plain" or "ordinary" meaning of a word is not necessarily synonymous with its dictionary definition. A word's ordinary meaning is "the reader's first impression meaning, the understanding that spontaneously comes to mind when words are read in their immediate context." This meaning is not frozen. Rather, a word's ordinary meaning will change with time and context. The word "technology", for example, means something very different today than it did 100 years ago. [Citing Wookey, at para. 25.]

The definition of "recording" has changed over time. Recordings were historically confined to visuals that were recorded and could be viewed at a later time or place, such as photographs and videotapes. However, live transmissions, such as FaceTime [sic], permit visuals to be captured by a device and broadcast simultaneously. It is now commonly understood that visual recordings can be broadcast from one location and viewed in another simultaneously. The ordinary meaning of recording must encompass these new forms of technology.

[163] The problem of relying on an "impressionistic" reading that contradicts established linguistic conventions has been explained above. The argument from the capacity of semantic meaning to change over time also fails, but this requires greater explanation [page300] as the Crown's argument equivocates between two propositions: one inherently unsound and one sound but misapplied.

1. The unsound proposition

[164] The unsound proposition is that because the meaning of words can change, the meaning of a statute necessarily changes with them. Out of the gate, this argument stumbles over first principles: as explained in para. 146 above, statutory interpretation is a matter of ascertaining what Parliament intended to communicate through the statutory text at the time of enactment. Accordingly, any subsequent change in the meaning of the words that Parliament used has no effect on the intended meaning.

[165] It would be arguable, were there any evidence of such usage, that although the semantic meaning of "recording" entailed preservation, the meaning changed prior to the enactment of s. 162.1 such that it would be reasonable to conclude that Parliament was cognizant of such a meaning and intended to use the word in this way. But there is no evidence of such usage and the proposition that the definition of "recording" has, as a matter of semantic meaning, changed to include a "any visual display created by any means" is untenable.

2. The sound proposition

[166] But much depends on the meaning of "change". The sound proposition within the Crown's submission is that where Parliament uses broad classes and concepts to denote its meaning, it necessarily assigns to subsequent interpreters the task of determining whether some instance comes within the enumerated class or concept: Hutchison, at pp. 45, 50-52; see also Sullivan, at §6.10. With such drafting, Parliament intends to accommodate changed circumstances that it did not, and perhaps could not, foresee. As Driedger explained, at p. 163, "words must be given the meanings they had at the time of enactment", however, "the ordinary original meaning of words may be held to embrace things unknown when the words were used".

[167] Thus, when the Crown asserts that "[t]he definition of 'recording' has changed over time", it can perhaps be understood as advancing a proposition about technological change rather than linguistic change. Accordingly, in the circumstances of this appeal, the question is whether a FaceTime transmission is a technology that comes within the broad category of "recording", as that term was used in the context of s. 162.1(2).

[168] The short answer is no.

[169] FaceTime is not a technology that postdates the enactment of s. 162.1(2). It was ubiquitous technology well before the [page301] enactment of the subsection in 2015. More significantly, the concept of live video transmission was well known and well established long before that time, though not on handheld devices. Given that the distinction between the transmission of a live event and the transmission of a recording was well known, s. 162.1(2)'s specific focus on the transmission of a recording is significant and cannot be dismissed with the argument that the concept of recording or archiving, though once a necessary precondition to transmission, is now obsolete.

[170] Indeed, the surrounding context in the Criminal Code makes it obvious that Parliament was well aware of the distinction between live-stream transmissions and transmissions of recordings, particularly when one considers the nuanced vocabulary Parliament used. For example, the offence for voyeurism under s. 162 explicitly distinguishes between the action of observing (i.e., "observes") using electronic means, and making a visual recording, both of which are proscribed. As with s. 162.1, Parliament specifically defines a "visual recording" as including "a photographic, film or video recording made by any means". The context, listing "video recording" with photographic and film recordings, confirms the archival nature of "video recording", and thereby "visual recording". In contrast, under s. 163.1, Parliament uses the broad category of "video or other visual representation" (emphasis added), rather than the narrower category of "visual recording". Between ss. 162 and 163.1, which flank either end of s. 162.1, electronically observing a person, making an electronic representation, and making a recording are all distinguished as separate actions. These provisions demonstrate Parliament was alive to the distinction between transmitting video data (e.g., observing through electronic means or creating a video representation) and making a recording.

[171] Consequently, there has been no relevant technological change that bears on the meaning of s. 162.1. What the Crown is left with is the proposition that a reauthoring of the provision would better achieve s. 162.1's purpose, being to protect human dignity and privacy by prohibiting the transmission of intimate visual images. But where Parliament chooses specific means to achieve its ends, the court is not permitted to choose different means any more than it would be permitted to choose different ends. The interpretive question is not what best promotes the section's purpose, such that courts can modify the text to best bring about that result, but rather how Parliament chose to promote its purpose. Courts are required to respect chosen means as well as ends. Had Parliament only enacted s. 162.1(1), leaving "intimate image" undefined, the Crown's case would be plausible. But by [page302] specifying that an "intimate image" is a recording, courts must give effect to that choice.

[172] To sum up, the argument that the ordinary meaning of a "visual recording" includes -- as a matter of contemporary linguistic use -- "any visual display created by any means" must be rejected. There is no evidence in the record before this court that "visual recording" has ever been used in this way. Often, debates over statutory interpretation revolve around which of several possible meanings is apt. In this case, there is no contest between rival meanings. What the Crown has proffered as the ordinary meaning of a "visual recording" is not only not the ordinary meaning, it is an invented meaning. Although the Crown's argument is framed in terms of ascertaining the conventional, ordinary meaning of language, it is actually an argument about what meaning ought to be imposed on s. 162.1, so as to best achieve the purpose of the section.

B. Context

[173] Ascertaining ordinary meaning does not exhaust the task of statutory interpretation, although it greatly structures and to some extent confines it. There remain additional inquiries. First, is there reason to believe that Parliament intended some other meaning? This is resolved by further resort to first, context, and second, purpose. Second, are there exceptional, unforeseen circumstances that would allow a court to conclude that there is some gap between Parliament's purpose and the intended meaning of the statute? That is, are there unforeseen circumstances where the intended meaning of the statute and the reasoned choice behind the legislation have been pulled apart? Such exceptional, unforeseen circumstances could authorize a corrective exception or extension, as the case may be: see Richard Ekins, The Nature of Legislative Intent (Oxford: Oxford University Press, 2012), at pp. 275ff ("Ekins, Legislative Intent").

[174] One can quickly dispose of the suggestion that Parliament did not intend to use "recording" in the phrase "visual recording" in the ordinary sense with its archival denotation. The context provides no reason to attribute some other meaning, nor does anything in the context suggest that the invented meaning of "any visual display" is what was intended. Instead, as I already discussed above, at paras. 170-171, the context surrounding s. 162.1 supports understanding "recording" in its ordinary sense with an archival denotation.

[175] The Crown glosses over the interpretive significance of s. 162 of the Code. That section establishes the offence of voyeurism and is helpful to understanding s. 162.1. It provides: [page303]

162(1) Every one commits an offence who, surreptitiously, observes -- including by mechanical or electronic means -- or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;

(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or

(c) the observation or recording is done for a sexual purpose.

Definition of visual recording

(2) In this section, visual recording includes a photographic, film or video recording made by any means.

(Emphasis in original)

[176] The voyeurism provision uses much of the same language as s. 162.1. Crucially, the section distinguishes between visually observing a person through electronic means and making a visual recording. It is an offence under s. 162(1) to do either. But the distinction suggests that using an electronic device to observe a person (whether the observation is, for example, done by the person placing a FaceTime video call or the person receiving it) is not the same thing as making a visual recording. Visual observation by electronic means -- that is, observation of a visual display -- does not entail the making of a visual recording. It would be both counter-intuitive for Parliament to have used "visual recording" in two different senses in adjacent sections of the Criminal Code and contrary to the presumption of consistent usage: Thomson v. Canada (Deputy Minister of Agriculture), 1992 121 (SCC), [1992] 1 S.C.R. 385, [1992] S.C.J. No. 13, at pp. 400-401 S.C.R.

C. Purpose

[177] Finally, how does the purpose of s. 162.1 assist in its interpretation? This inquiry is often referred to as a purposive interpretation or analysis, and it serves to ensure that in construing the meaning of words, the interpreter takes legislative purpose into account: Plaxton, at pp. 102-103; Sullivan, at §9.3.

[178] While engaging in purposive interpretation, one must be careful not to conflate purpose and meaning. The consideration of purpose as an interpretive guide is in helping resolve what Parliament intended by the statute it enacted. It is not a question of whether a differently worded statute would -- in the mind of the interpreter -- better achieve the purpose. We must not "take the [page304] ends for which the legislature acts to license the substitution of alternative means": Ekins, Legislative Intent, at pp. 251, 254-55. The danger in purposive interpretation is that it can easily be misused by taking an abstract statement of statutory purpose -- say, the protection of privacy or human dignity -- and then concluding that the statute enacts whatever propositions would best achieve this aim. This would subordinate the legislature's actual reasoning and the actual plan chosen to achieve its aim: Ekins, Legislative Intent, at pp. 249-55; Plaxton, at pp. 106-107; and Sullivan, at §10.25, 15.5.

[179] It is common ground that in enacting s. 162.1, Parliament intended to protect human dignity and privacy by prohibiting the transmission of intimate visual images. It was responding specifically to instances of great personal harm caused by persons who had uploaded or distributed intimate images of women and girls. Although it was already an offence under s. 162(4) to distribute voyeuristic recordings, s. 162.1 created an additional offence of distributing intimate visual recordings that had been made non-voyeuristically. The type of visual recordings caught by this provision was intended to be extremely broad: "visual recording of a person made by any means". Thus, s. 162.1 captures not only means of recording that existed at the time of enactment, or those that were specifically enumerated, but all means of recording, present and future.

[180] It cannot be concluded that because Parliament intended to capture all means of making a recording and a very broad class of means of distribution, it therefore also intended to define "intimate image" as broadly as the Crown contends. The text and context both suggest otherwise. Parliament did not need to define "intimate image" in terms of a "visual recording". Had intimate image been left undefined by s. 162.1(2), it would arguably have been broad enough to include live-streamed images. However, Parliament chose to specify the meaning as "visual recording" rather than "visual display", "visual depiction", or "visual representation", as in s. 163.1(1)(a). All of these options were open to Parliament, and it instead chose the more restrictive category of visual recording.

[181] I reiterate that the existence of FaceTime video calling is not an unforeseen circumstance. FaceTime existed before 2015, and live video transmission generally existed long before FaceTime. Parliament was aware of both the existence of this technology and the language used to describe it. A recording is not a necessary precondition for the transmission of every type of image. But even if the Crown was correct on this point, it would not follow that the transmission of non-recorded, live-streamed images and the transmission of recorded images, would therefore [page305] now both be known as the transmission of recordings. There is no basis upon which to find that any change in technology or circumstance warrants reinventing the meaning of "recording".

[182] After considering the text, context, and purpose of s. 162.1, it can only be concluded that the section does not apply to live-streamed images. But for the prescribed definition, there would be an ambiguity in the meaning of "image", in which case it could have indicated something that can be seen (e.g., a visual display) or recorded (and, typically, capable of repeated viewing). But the definition resolves the ambiguity in favour of the latter. This is a reasoned choice by Parliament, and this court is required to respect chosen means as well as ends.

D. Absurd consequences

[183] Notwithstanding my conclusion about the intended meaning of s. 162.1, is there good reason to conclude that Parliament's purpose in enacting the legislation and the intended meaning of s. 162.1(2) have diverged in the application to FaceTime video calls? That is, does the above interpretation result in absurd consequences?

[184] I do not think so. The harm Parliament had before it was the damage to persons whose privacy and dignity would be terribly abused by the unauthorized sharing of intimate images. Parliament enacted legislation to protect against this particularly serious violation of human dignity. But it did not intend s. 162.1 to stand as a complete code. It is supplemental to the voyeurism offences in s. 162. Section 162.1 does not capture, and was not intended to capture, every act by which one person injures others by exposing them to the view of third parties. It did not, for example, criminalize acts such as the accused opening the bathroom door and exposing the complainant to the view of the friends he invited into his apartment. Each of these friends was in the same position to record the complainant as any of his other friends who received a FaceTime call. Had they done so, each would have faced the same potential jeopardy under s. 162.

[185] There would be nothing irrational or unreasonable about Parliament choosing to criminalize the transmitting of live, unrecorded images through s. 162.1. But it did not do so, and there is no good reason to conclude that this decision was unintended or that it undermines Parliament's purpose in enacting the legislation it did. The proper interpretation of s. 162.1 does not impair its functioning in prohibiting the dissemination of recordings.

[186] The conduct complained of in this case is reprehensible. But exposing a person to the view of others is different than placing a recording that is capable of publication in the hands of third parties. A recording can be viewed an infinite number of times, by [page306] an unlimited number of people. A live-stream transmission cannot. It is not irrational or arbitrary for the criminal law to differentiate between them. Of course, a live-stream transmission is capable of being recorded, requiring only the simultaneous decision of the recipient of a FaceTime video call to record it. But such a recording would likely violate s. 162, and any sharing of that recording would violate s. 162.1.

[187] The accused is not a sympathetic figure. On the facts alleged, he not only grossly violated the dignity of the complainant, he facilitated others in doing the same. He should have known what he was doing was seriously wrong. Although he was not charged under s. 162, the reason why is not immediately obvious.³ However, even if there was no criminal prohibition corresponding to the accused's conduct, it would not be a reason to distort the meaning of s. 162.1. As Stratas J.A. reminded in Williams, at para. 47, moral evaluation of the accused's conduct cannot be allowed to displace the interpretation of the statute. Criminal offences have elements, and where those elements are not made out, judges are not authorized to substitute new ones.

[188] To sum up, there is a methodology intended to structure and guide judicial interpretation of statutes. It directs judges to a body of law that places primacy on understanding the intended meaning of Parliament in enacting the statutory text that it did. The application of the modern principle in this case leads to the conclusion reached by the trial judge: s. 162.1 prohibits the transmission of a recording. It does not prohibit the transmission of images that are not recordings. A FaceTime video call operates by transmitting images that have not first been recorded and are never recorded in the course of transmission, although they are capable of being recorded by a recipient. The trial judge made no erroring in allowing the application for a directed verdict of acquittal. [page307]

IV. Sufficiency of the Evidence

[189] One final point. The trial judge understood as well as the next person how an iPhone works. She did not require expert evidence to explain its user-level functioning. But by this point in her reasons, the trial judge had rejected the Crown's invitation to redefine a recording as a live-stream transmission, preferring the definition used by everyone else. The Crown thus faced an evidential hurdle. In order to defeat the directed verdict application, the Crown needed to establish that a FaceTime video call transmitted "a recording" as that word is ordinarily understood: a depiction that outlasts the event it depicts -- for however long -- allowing the event to be viewed at some later time, whether once or multiple times.

[190] But FaceTime, as far as the trial judge could tell, does not work in this way. (Note that this is not the question of whether a recipient of a FaceTime video call can make a recording of it. The fact that a transmission of a live-stream image can be recorded by its recipient does not mean it was a transmission of a recording rather than a previously unrecorded, live event.) For the Crown to succeed, it would need to provide evidence that FaceTime functioned in a way contrary to what is commonly understood. The trial judge insisted that the Crown prove the elements of the offence. If the Crown's case rested on the technical -- and highly doubtful -- claim that FaceTime operated by recording or saving images somewhere and then transmitting them, then the Crown needed to produce some evidence of this. It did not. The trial judge made no error in requiring evidence on this point.

V. Disposition

[191] I would dismiss both the appeal against conviction and the Crown's appeal of the directed verdict of acquittal.

Appeal by accused dismissed and appeal by Crown

allowed.

Notes

1 The trial judge heard and decided this application in September 2018. Section 276(2) was amended effective December 13, 2018: S.C. 2018, c. 29, s. 21. When the trial judge decided the application, s. 276(2) read:

(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 276.2, that the evidence

(a) is of specific instances of sexual activity;

(b) is relevant to an issue at trial; and

(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

2 Canada, Department of Justice, Report to the Federal/ Provincial/Territorial Ministers Responsible for Justice and Public Safety: Cyberbullying and the Non-Consensual Distribution of Intimate Images (June 2013), at pp. 14-15.

3 In commenting on this observation at para. 73 of her reasons, my colleague argues that s. 162 could not apply in the circumstances of the present case because the accused was not acting surreptitiously. It should be noted, again, that because there was no charge brought under s. 162, there were no submissions on this point and no adjudication. This court has not yet pronounced on the meaning of "surreptitious" in the context of s. 162. The interpretation of that section, when it is provided, must be determined using the methodology required by the modern principle. But although an authoritative statement about the meaning of "surreptitious" in the context of s. 162 therefore cannot be given in these reasons, I reiterate that it is not obvious that a man who opens a bathroom door and livestreams someone in the position of the complainant while her attentions are concentrated elsewhere, is not acting surreptitiously. This remains the case even if the person who is being observed electronically soon becomes aware of it but is powerless to stop it.

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