W A R N I N G
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162,
162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271,
272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1,
286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph
(i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
B E T W E E N :
HIS MAJESTY THE KING
— AND —
MATTHEW SMISSAERT
Before Justice D. Rose
Heard on September 17, October 28, March 23, 2026
Reasons for Judgment released on April 1, 2026
S. Goldfarb counsel for the Crown
N. Bedar counsel for the accused Mattew Smissaert
1Mr. Smissaert pleaded not guilty to various charges, including Voyeurism under s. 161 on September 17, 2025. He applied for severance of that charge from other charges. That application was dismissed for oral reasons in Court. On October 28, 2025 he changed his plea on the Voyeurism charge to guilty and argued a Charter Application on the balance of the charges. The Charter Application was granted on November 19, 2025 with the result that Mr. Smissaert was acquitted of those other charges. Those reasons are reported at R. v. Smissaert 2025 ONCJ 603. These are the reasons for sentencing on the Voyeurism charge.
Facts
2The facts admitted to at the guilty plea are that Mr. Smissaert owns a house in Carleton Place. He had a tenant MO. She was 27 years old in April of 2025. MO was friends with Mr. Smissaert’s son but he had moved out before 2025. MO found a device in the shared bathroom on April 3, 2025. It was in the ceiling pointed toward the shower. She took a picture of it, and then removed it. She then reported all of this to the O.P.P.
3Mr. Smissaert was then arrested on April 4, 2025 and interviewed by DC Dikih. He admitted to DC Dikih that he installed the camera earlier in the evening of April 3, and explained that it requires manual activation and does not record automatically. He explained that he installed the device to record consensual sexual activity between him and a friend. He denied that he made any recordings of MO and denied that he had any video of her recorded from it.
4That turned out to be untrue. The police analysed the device as well as Mr. Smissaert’s phone. Mr. Smissaert’s phone turned out to have video images of MO recorded while she was nude in the bathroom of the home recorded from the video camera. One was recorded on January 5 2025 and is focussed in on MO’s breasts. On January 12, 2025 Mr. Smissaert’s camera recorded MO for 45 seconds moving about the bathroom fully naked. Other images from January 27, 2025 show MO naked in the shower from above. That recording lasted 41 seconds.
5A second cell phone seized from Mr. Smissaert was also analyzed. It recorded images from MO in the bathroom in various states of undress, wearing clothes and also on the toilet. Those are from April 2022. The images on Mr. Smissaert’s phone from April of 2022 are similar to the January 2025 images. They capture MO in the bathroom fully naked, towelling off, and getting dressed.
6All of the images found on both of his phones were downloaded from the secreted bathroom camera. The extractions reports were filed at sentencing. One image from 2022 has Mr. Smissaert himself on the toilet looking at his phone. As the facts admitted to on sentencing prove, Mr. Smissaert was the only person who had access to the bathroom camera images. He was looking at himself on camera either at that very moment, or thereafter.
7What is clear on the evidence before me is that Mr. Smissaert controlled the use of the camera himself. He chose when to turn it on, how long it operated and what images he would save onto his camera. I have no difficulty in finding that Mr. Smissaert must have waited until MO entered the bathroom before turning the camera on.
8By text message to MO on April 4 2025 Mr. Smissaert apologized to her for finding the camera. It said
Hi [MO]. I'm sorry you found my camera. Please don't think anything wrong about it. I put it there yesterday for a day I had planned for today with a friend I invited over. Please don't think anything wrong was happening. I respect you more than that. It was not turned on, and I was just waiting for this morning. Sorry if this caused you alarm. It wasn't meant to. I'm truly embarrassed.
As should be clear, Mr. Smissaert’s claim that the camera was put in the day before and that nothing was wrong was quite false.
Mr. Smissaert
9Matthew Smissaert is 65 years old. He has a criminal record for Voyeurism in 2014 where he received 2 years probation. More will be said about that later.
10According to the PSR Mr. Smissaert is by trade a heavy equipment mechanic. He served in the Canadian military for 4 years and thereafter worked as a service manager at an automotive company and then mechanic. He retired in 2020. He purchased his home in Carleton Place in 2010. He does not appear to have a substance abuse problem. He suffered a brain injury from a motorcycle accident for which he has been prescribed cannabis.
11Mr. Smissaert said that, while he took responsibility for this, he said his intentions were not malicious. He said he was in the habit of recording himself and a female partner engaging in sex. He forgot the camera was working when recorded MO. As he told the PSR “why didn’t I see it as a problem, I couldn’t understand it at the time”. He was remorseful to the PSR writer. He denied any problem with sexual behaviours. One of Mr. Smissaert’s other tenants was interviewed and described him in positive terms.
12The Crown filed a transcript from Mr. Smissaert’s September 22, 2014 guilty plea before Wright J in this Courthouse. At that time he admitted that in February 2014 he posted and ad on Craig’s list seeking to locate a woman he had had a causal sexual encounter with. He described her physically, the nature of their sexual encounter, and that the encounter had been at his home. He then posted a picture of the woman laying nude in her bed asleep, or passed out with her legs open. The complainant then found the ad on Craigs list identified herself and called the police. Mr. Smissaert admitted that he had posted the picture. Justice Wright accepted a joint submission commenting that “The aggravating factor here is clearly that the action was done I take it, for malicious and mean spirited reasons”.
13Letters filed at sentencing include a letter of apology to MO admitting to having crossed boundaries and admitting to invading her privacy. As he said, “I recognize that my actions made you feel uncomfortable, exposed or perhaps even unsafe in your own environment. That is a heavy realization for me to carry. It was never my intention to cause you distress but I understand that intentions don’t matter nearly as much as the impact on what I actually did”. emphasis added.
14Other documents filed document his brain injury from a motorcycle accident in 2024. The physician documents the impairment of his cognitive function including loss of inhibition, impulsive decisions or inappropriate social behaviour.
15Mr. Smissaert also filed letters of support from persons in the community. He was described in them as kind, and compassionate and respectful.
16Mr. Smissaert served 5 days of Pre-Sentence Custody on this charge.
Victim Input
17The Crown offered no Victim Input. Without it I am prepared to find that this offence was a gross violation of MO’s personal bodily integrity by someone she trusted, namely her live in landlord.
18The Crown seeks a 9 month jail sentence, 3 years of probation, and a DNA order as a secondary designated offence. Ms. Bedar seeks a 9 month Conditional Sentence Order and 2 years probation.
19I struggle with Mr. Smissaert’s explanation that he set up the camera to record consensual activity between him and a partner. That is at odds with his admission of culpability. It is also at odds with the admitted facts that he had images of MO kept on his phone taken over the course of years. There is no way Mr. Smissaert did not see the subject of the video being MO and him taking the step to keep it on his phone. It also does not make sense. If Mr. Smissaert was of the habit of taking videos of consensual sexual contact there would be no reason to secret the camera in the ceiling of the washroom. The location of camera was selected so that the person being recorded would not know of that fact.
20I have considered whether Mr. Smissaert’s 2024 motorcycle accident, and brain injury reduces his moral culpability. Dr. Marshall wrote in his letter in the defence sentencing materials:
I will note that Mr. Smissaert sustained a traumatic brain injury well-documented in July 2024. At a time point 6 months postinjury he had ongoing evidence and sequelae on examination of the effects of the traumatic brain injury that led us to refer him on for further outpatient based therapy for management of brain injury impairments. The imaging of his brain shows injury to the right frontal lobe. I can comment that common findings associated with frontal lobe injury include impairments of executive functioning such as planning, organizing and prioritizing tasks. Impulse control and judgment which impacts abilities to weigh consequences before acting is often also impaired. There are personality and social behavioral changes including changes in ability to have empathy and emotional regulation. The behavioral changes most commonly encountered include “loss of inhibition, impulsive decisions or inappropriate social behavior. Some survivors act without considering consequences, straining relationships."(brainjuryinstitute.org )
While I cannot comment on the patient’s behaviours prior to brain injury, I do believe that given the timing of his actions following his brain injury, he would have a predisposition to altered behaviour including disinhibition, impulsive decision making and inappropriate behaviour. In my opinion this would align potentially with his actions that he is charged with.
21What Mr. Smissaert admitted to in this guilty plea is the very deliberate installation of an extremely small camera in the washroom shared with his tenant. He selected the device and location so that it would not be seen. The location was not always the same. He connected the camera to his phone to save images captured by the camera. The camera was manipulated from his phone. It was not simply set to record everything in the bathroom. The inference is that Mr. Smissaert turned the camera on when he knew MO went into the bathroom. All of that is demonstrative of considerable deliberate planning. If Mr. Smissaert has impaired executive functioning as a result of his brain injury , it had no effect on his ability to plan and execute his voyeurism. This was not a crime committed out of anger by someone who could not control or contain himself. I would also take into account Mr. Smissaert’s voyeurism conviction in 2014 – 10 years before his motorcycle accident – as a basis to conclude that this voyeurism is unconnected to his brain injury. Most challenging to Mr. Smissaert’s claim to reduced moral culpability because of his brain injury is the date of some the images. Put bluntly, the voyeurism in the case at bar pre-dated the brain injury by about 2 years. I also find that Dr. Marshall’s opinion is that his brain injury only potentially explains his actions. For these reasons any causal connection between the brain injury and the voyeurism is not made out. Mr. Smissaert has not demonstrated on a balance of probabilities that his brain injury reduces his moral culpability, see R. v. Leclair 2024 ONSC 1217 at paras 66 – 72, s. 724 (3) (d) of the Code.
22I find that the Aggravating factors are:
He is not a first time offender;
Videos captured images over year;
The videos of MO required deliberation on the part of Mr. Smissaert to wait until MO entered the bathroom before activating the camera. This significantly aggravates the breach of trust. MO used the washroom without knowing that he was waiting for her to go in there before he could activate the camera;
The significant violation of the bodily integrity of MO his tenant. This is an extreme breach of trust;
MO was filmed completely nude in a bathroom which is a place of extreme privacy;
Mr. Smissaert’s moral culpability is high;
It appears that he has limited to no insight.
There are Mitigating factors:
The guilty plea saves the expense and time of having a trial, but that is somewhat attenuated because the Crown case is overwhelming;
There is no distribution of the images.
He wrote a letter of apology to the complainant.
His guilty plea saved the complainant from having to come to court to re-live the moment.
He has positive letters of support.
23Sentencing cases filed by the Crown establish a custodial range from 5.5 months jail (R. v. Sajeevan 2025 ONCJ 510), 6 months jail (R. v. Jarvis 2019 ONSC 4938), 9 months jail (R. v. J.C. [2021] O.J. No. 7396) to 16 months jail (R. v. Riggs 2024 ONSC 2862). Mitigating factors include a guilty plea, otherwise pro-social lifestyle, no prior criminal record, low risk to re-offend. Aggravating factors tend to include a trust relationship between the offender and victim, length of time of the offence, volume of recordings, and in Riggs supra, the level of personal privacy violation.
24What is clear from the cases provided by the Crown is that Conditional Sentences were not imposed because such a penalty would not reflect the heightened denunciation and deterrence principles which are foremost in voyeurism cases, see for eg Jarvis at par. 82, Riggs at par 58. In Sajeevan, my brother Brannagan J. was presented with a joint submission for a conditional sentence, rejected it, and imposed a jail sentence. He said,
100 In short, a conditional sentence order is so removed from the circumstances of these offences and this offender as to make its acceptance contrary to the public interest, having the potential to bring the administration of justice into disrepute. I find that ordering a CSO on these facts would cause an informed and reasonable member of the public to lose confidence in the institution of the courts.
I agree and apply that to this case.
25The principle factor in sentencing in this case is denunciation and deterrence. This was a profound violation of privacy by a live-in landlord over nearly 3 years. There is no evidence that the images were ever distributed, but with that said I have little doubt that MO will always be wondering if there isn’t an image of her in the shower on the internet. Even if there is no evidence of distribution the possibility to the victim will have an outsized impact on her. Rehabilitation is a factor but less dominant that denunciation and deterrence.
26This case is eligible for a Conditional Sentence because it is less than 2 years in duration. Mr. Smissaert therefore satisfies the first part of the test. I am not sure that Mr. Smissaert poses no threat to public safety. His prior record for the same offence is cause for concern, but at the same time his offending is distinctly private. He offends in his own home. While it is far from clear, I would find that public safety is not put at risk by imposing a CSO.
27Where the request for a CSO fails in my finding is in the last part of the test. I have no difficulty finding that a CSO does not fulfill the very significant denunciatory and deterrent requirement of a fit sentence where the offender has a prior conviction for the very same offence and the breach of trust is significant. The privacy violation of MO was at the very upper end of the level of seriousness. Unbeknownst to her she was captured nude in the bathroom. A Conditional Sentence would not be a proportionate sentence.
28For these reasons Mr. Smissaert will serve a jail sentence of 6 months less pre- trial credit for 8 days. The net sentence is 5 months, 22 days. When he is released he will serve 24 months probation. The terms will be
Report to a probation officer within 2 days of release of custody by telephone and thereafter at all times as directed.
Attend and actively participate in any counseling, treatment or therapy recommended by your probation officer
Sign any necessary consents/waivers
No contact, either direct or indirect, with MO
Not to be within 100m of any place you know her to be, work, or reside
Do not possess any electronic devices capable of making visual recordings except one personal cellphone
29Given the facts from this plea there will be a DNA order.
Released: April 1, 2026
Signed: Justice D. S. Rose