WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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).

486.4(2) 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.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 2018-12-05

Docket: C64709

Judges: Watt, van Rensburg and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

J.W.M. Appellant

Counsel: Ian Carter, for the appellant J. Sandy Tse, for the respondent

Heard and released orally: November 8, 2018

On appeal from: the conviction entered on November 3, 2017 by Justice Robert G. Selkirk of the Ontario Court of Justice.

Reasons for Decision

[1] After a trial before a judge of the Ontario Court of Justice, the appellant was convicted on a single count of voyeurism.

[2] The case for the Crown at trial was that during a camping trip with his children, the appellant is alleged to have utilized the video recording capacity of his cellphone to record the complainant changing into her bathing suit before going swimming. For his part the appellant denied having intentionally engaged in any such video recording.

[3] On appeal, the appellant advanced two submissions in his factum focusing upon the reasons for judgment of the trial judge. In oral argument the appellant did not pursue the submission that the trial judge failed to properly apply the principles of R. v. W.(D.), [1991] 1 S.C.R. 742. The oral submissions focused on a single bullet point in the trial judge's reasons for judgment which the appellant says is flawed by speculation.

[4] We are not persuaded that this ground of appeal warrants our intervention. On a reading of the trial judge's comprehensive reasons as a whole, we are satisfied that what the impugned passage is pointing out is that to engage the video recording capacity of the cellphone, the appellant had to follow a series of three steps.

[5] To determine whether this claim of error warrants our intervention, it is critical to appreciate that prior to the impugned passage, the trial judge had already found:

i. that on two occasions immediately before the complainant entered the tent to change into her bathing suit, the appellant had plugged in his cellphone in the tent to "charge it";

ii. that immediately after the complainant had changed into her bathing suit, the appellant returned to the tent, removed his cellphone and immediately went to the washroom facilities where he remained for a period of minutes;

iii. that the period for which the cellphone was charged was about three minutes;

iv. that the charging of the phone was a pretext to get the phone into the tent;

v. that the positioning of the phone was intentional so that its video recording function was propped up and pointed towards the centre of the tent where the complainant would be changing; and

vi. that this happened on two occasions.

[6] In light of these findings and his correct statement of the steps necessary to engage the video recording function of the cellphone, we see no reversible error in the impugned paragraph.

[7] As we read the trial judge's reasons in this paragraph, we are satisfied that it was the accumulation of steps that satisfied the trial judge that this conduct was intentional, not accidental. Even if one accepts in the abstract that one or other of the necessary steps could have occurred accidentally, his finding that the screen had to be swiped was well-supported by the evidence, and combined with his previous findings, proved the intentional nature of the recording beyond a reasonable doubt.

[8] For these reasons, the appeal is dismissed.

David Watt J.A. K. van Rensburg J.A. David Brown J.A.