R. v. Trinchi

[Indexed as: R. v. Trinchi]

Ontario Reports

Court of Appeal for Ontario

Juriansz, Pepall and Lauwers JJ.A.

May 2, 2019

145 O.R. (3d) 721 | 2019 ONCA 356

Case Summary

Criminal law — Voyeurism — Complainant willingly appearing naked while engaging in video chats with accused while they were in intimate relationship — Accused taking still photos from live video stream without complainant's knowledge or consent — Accused guilty of voyeurism under s. 162(1)(b) of Criminal Code — Complainant in circumstances that gave rise to reasonable expectation of privacy — Consent of complainant to allow accused to view her naked live during intimate chat fundamentally different from accused making a permanent record of activities without complainant's knowledge or consent — Accused acting "surreptitiously" as he intended that complainant be unaware that he was taking still photos — Criminal Code, R.S.C. 1985, c. C-46, s. 162(1)(b).

The accused was convicted of voyeurism contrary to s. 162(1)(b) of the Criminal Code. While they were in a long-distance intimate relationship, the accused and the complainant engaged in video chats. In some of those chats, the complainant willingly appeared naked. The accused took still photos from the live video stream without the complainant's knowledge or consent. The accused appealed his conviction, arguing that the complainant, having willingly posed nude in the video chats, could not be said to have had a reasonable expectation of privacy in the circumstances, and that the trial judge erred in law by finding that he acted "surreptitiously".

Held, the appeal should be dismissed.

Whether a person has a reasonable expectation of privacy for the purposes of s. 162(1)(b) of the Code will depend on whether the person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred. The complainant testified that she thought the video chats were live and "in the moment" conversations over the Internet. Her subjective expectation was that the accused would see a fleeting image of her on his computer screen in real time. She did not know and did not expect that the accused would make any permanent recording of her naked body. The trial judge did not err in finding that the complainant was in circumstances that gave rise to a reasonable expectation of privacy when the accused took the still photos. This interpretation is consistent with Parliament's intention to protect the privacy and sexual integrity of people in an era of evolving technologies.

The ordinary meaning of the word "surreptitiously" in s. 162(1) of the Code includes intent. The word "surreptitiously" refers not to what the accused does, but to the state of mind with which he does it. The mental state required by the word "surreptitiously" in s. 162(1) is the intent that the subject not be aware that she is being observed or recorded. In a prosecution under s. 162(1)(b), the Crown may prove the accused acted surreptitiously by proving that he observed or recorded the subject with the intention that she would be unaware he was doing so. The trial judge in this case found that the accused's conduct in taking still photos exceeded the parameters of what had been tacitly agreed to by two intimate partners. The trial judge did not focus unduly on the complainant's state of mind. He repeatedly stated that the accused acted "secretly" and that his actions were "clandestine". The accused's state of mind could be inferred from the circumstantial evidence. The complainant did not know that the screenshots were being taken, and the accused never told her he was taking screenshots. The trial judge did not err in finding that the accused acted "surreptitiously" in taking the screenshots.

R. v. Jarvis, 2019 SCC 10, apld

R. v. Lebenfish, 2014 ONCJ 130, 10 C.R. (7th) 374; R. v. N. (M.E.), 2014 ONCA 69, consd

Other cases referred to

R. v. Mills, 2019 SCC 22

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 162(1), (a), (b), (c), (4), 172.1, 191(1), 364(1), (2)

Authorities referred to

Canada, Department of Justice, Voyeurism as a Criminal Offence: A Consultation Paper (2002)

Procedural History

APPEAL by the accused from the finding of guilt made on June 17, 2016 and the conviction entered by Fregeau J., 2016 ONSC 6585 (S.C.J.).

Matthew R. Gourlay, for appellant.

Jennifer Epstein, for respondent.

The judgment of the court was delivered by

JURIANSZ J.A.:

A. Introduction

[1] The appellant succinctly summarizes the question before the court as follows: two people in a long-distance romantic relationship engage in an intimate webcam video chat. Both people are naked. Both know they are on video. One party, unbeknownst to the other, takes a still photo of his partner from the live video stream. Does he thereby commit the Criminal Code offence of voyeurism?

[2] The appellant and the complainant were in an intimate relationship between March 2010 and September 2011. The appellant lived in Toronto and the complainant lived in Thunder Bay. As they could see each other in person only occasionally, they often engaged in Skype video conversations via computer ("video chats"). Sometimes the complainant willingly appeared nude before the computer in sexually provocative poses. On some of these occasions, the appellant took screenshots of the naked complainant and saved them on his computer. The complainant testified that she understood that her image was being captured as video and streamed over the Internet to the appellant, but that she did not know he was taking screenshots and preserving nude images of her as still photos.

[3] After the complainant ended the relationship, e-mails with nude photos of her were e-mailed to many people. These nude photos were the screenshots the appellant took during their video chats. The appellant was charged with six offences arising from the distribution of the nude photos of the complainant. He was also charged with voyeurism for taking the screenshots in the first place. At trial, the appellant did not testify, but led evidence that another girlfriend had the motive, opportunity and propensity to distribute the nude photos of the complainant. Because this evidence raised a reasonable doubt for the trial judge, he acquitted the appellant of the six charges relating to the distribution of the nude photos. However, the trial judge had no doubt that the appellant had taken the photos and convicted him of voyeurism.

[4] On appeal, the appellant advances two grounds. First, he submits that the complainant, having willingly posed nude in the video chat, knowing she was doing so before a camera, could not be said to have a reasonable expectation of privacy in the circumstances. Second, he submits that he cannot be found to have acted surreptitiously. Despite it being well-known that screenshots can readily capture any image on a computer monitor, the complainant never indicated she did not want screenshots taken and the appellant never said he would not take any. He submits the voyeurism offence requires proof of the accused's state of mind: specifically, that he intended to act surreptitiously. He argues that the trial judge erred in law by finding he acted "surreptitiously" after considering the situation from the complainant's perspective, instead of focusing on his state of mind.

B. Section 162(1) of the Criminal Code

[5] The offence of voyeurism is found in s. 162(1) of the Criminal Code. It provides:

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.

[6] Parliament enacted s. 162(1) of the Criminal Code in 2005. As stated by Wagner C.J.C. in the Supreme Court's recent decision in R. v. Jarvis, 2019 SCC 10, at para. 48, Parliament's object in creating the voyeurism offence was "to protect individuals' privacy and sexual integrity, particularly from new threats posed by the abuse of evolving technologies". Conceptualizing voyeurism as both a sexual and a privacy-based offence was favoured by the majority of respondents to the government consultation paper circulated in 2002: Canada, Department of Justice, Voyeurism as a Criminal Offence: A Consultation Paper. The provision eventually enacted was intended to deal with both related harms: Jarvis, at para. 51.

[7] Section 162(1) addresses three different situations. These are set out in paras. (a), (b) and (c). The application of all three paragraphs is subject to the two limitations in the opening words of the section. First, the person who is observing or making the recording must act "surreptitiously". Second, the person observed or recorded (who I will call the "subject") must be in circumstances that give rise to "a reasonable expectation of privacy".

[8] Paragraph (a) addresses the situation in which the subject is in a place in which a person can reasonably be expected to be nude, exposing intimate body parts, or engaged in explicit sexual activity. It is worth noting that para. (a) does not require the person to be actually nude, exposing intimate parts of his or her body, or engaged in sexual activity. It is enough if they are in a place where they may reasonably be expected to be in such a state, such as a changing room, toilet, shower stall, or bedroom. Paragraph (a) criminalizes making peepholes or the installation of cameras to observe people in such places. A person who installed a hidden camera in a fitting room of a department store would likely be caught by this provision if the only recording he captured was of a fully clothed customer trying on different hats. Paragraph (a) does not require the accused to act for a sexual purpose. It would apply to an accused who hoped to profit by posting recordings on the Internet.

[9] Paragraph (b) applies when the subject is nude, exposing sexualized parts of his or her body, or engaged in explicit sexual activity. The nature of the location does not matter, but the accused must have the purpose of observing or recording the subject in such a state or engaged in such an activity. As in para. (a), it is not necessary for the Crown to prove the accused acted for a sexual purpose. Paragraph (b), like para. (a), would apply to an accused whose purpose was commercial.

[10] Paragraph (c) applies to an accused acting for a sexual purpose. Paragraph (c) applies whether the subject is clothed or unclothed -- no matter what she or he is doing.

[11] It is worth repeating that the opening words of the section specifies limitations that apply to all three paragraphs. The accused must have acted "surreptitiously" and the subject must have had a reasonable expectation of privacy in the circumstances.

[12] The appellant was charged under s. 162(1)(b). Section 162(1)(b) requires proof of the following elements:

1. the accused observed or recorded the subject;
2. the accused's observation or recording was done surreptitiously;
3. the subject was in circumstances that gave rise to a reasonable expectation of privacy;
4. the subject was nude or exposing sexual parts of her body or engaged in sexual activity; and
5. the observation or recording of the subject was done for the purpose of recording them in such a state.

[13] Elements 1, 4 and 5 are not in issue in this appeal. The appellant does not dispute he took screenshots of the complainant, the complainant was naked and exposing sexual parts of her body when he did so, and he took the screenshots for the purpose of recording the complainant in such a state. In this appeal, the issues are whether the complainant had a reasonable expectation of privacy in the circumstances and whether the appellant acted surreptitiously.

C. Reasonable Expectation of Privacy in the Circumstances

(1) The Law

[14] The hearing of this appeal was deferred until the Supreme Court rendered its decision in Jarvis. Jarvis concerned the interpretation of the phrase "reasonable expectation of privacy" in s. 162(1). The phrase, as the Supreme Court pointed out, must be interpreted in light of Parliament's object in enacting the voyeurism offence. Parliament's object was to protect individuals' privacy and sexual integrity from new threats posed by the abuse of evolving technologies. The basic question is whether in the circumstances the person observed or recorded would reasonably expect not to be the subject of the type of observation or recording that in fact occurred. The Supreme Court said that basic question should be answered by taking into account all the circumstances in which the observation or recording took place.

[15] In Jarvis, a high school teacher used a concealed camera to make video recordings of female students in classrooms, hallways, the cafeteria and other locations around the school. The teacher argued the female students in these locations would certainly have known they could be observed by others and so did not have a reasonable expectation of privacy. The Supreme Court decided otherwise. The Supreme Court engaged in a contextual assessment of the totality of the circumstances and specifically discussed nine circumstances relevant in the case. The Supreme Court emphasized that what circumstances are relevant will depend on each individual case. Though the circumstances of this case are quite different from those in Jarvis, it is still instructive to enumerate the specific circumstances the Supreme Court considered in Jarvis, at para. 29:

1. the location the person was in when she was observed or recorded;
2. the nature of the impugned conduct (whether it consisted of observation or recording);
3. awareness of or consent to potential observation or recording;
4. the manner in which the observation or recording was done;
5. the subject matter or content of the observation or recording;
6. any rules, regulations or policies that governed the observation or recording in question;
7. the relationship between the person who was observed or recorded and the person who did the observing or recording;
8. the purpose for which the observation or recording was done; and
9. the personal attributes of the person who was observed or recorded.

[16] After discussing these matters, the Supreme Court concluded the persons recorded by Mr. Jarvis were in circumstances that gave rise to a reasonable expectation of privacy for the purposes of s. 162(1). While the subjects could be casually observed, or even stared at, in the common areas of the school, the school was still not an entirely public place. The subjects reasonably had the expectation they would not be the focus of the permanent visual recordings Mr. Jarvis made. They may have expected to be captured incidentally by the school's security cameras, but they did not expect to be recorded by a hidden camera focused at close range on their faces and breasts. Individuals, the Supreme Court observed, "are understood to have heightened privacy expectations with respect to intimate or sexualized parts of the body": para. 82. Further, the videos were recorded in breach not only of the relationship of trust between the teacher and the students, but also in breach of formal school board policy.

(2) Application to This Case

[17] The appellant stresses the circumstances of this case are different. Here, he was involved in an intimate relationship with the complainant. She willingly and knowingly appeared on camera in their video chats for the express purpose of displaying herself to him naked and in sexual poses. The appellant acknowledges that engaging in sexual activity in one's own bedroom is a circumstance that attracts a high expectation of privacy. However, he argues the complainant admitted him within her circle of privacy by voluntarily exposing herself, knowing she was doing so through a camera, a device the very purpose of which is to capture images. He submitted that Parliament created the offence to apply to the electronic "peeping tom", not to an intimate partner.

[18] The argument is unpersuasive. Wagner C.J.C. in Jarvis indicated the voyeurism offence can indeed apply to a consensual sexual partner admitted within one's zone of privacy. He explained, at para. 38:

. . . a person who chooses to disrobe and engage in sexual activity with another person . . . necessarily expects to be observed by that other person while she is nude and engaging in that activity. Her privacy would nonetheless be violated if that other person, without her knowledge, video recorded the two of them engaging in the activity.

[19] This example, it seems to me, provides a short and direct path to the conclusion that the complainant had a reasonable expectation the appellant would not take screenshots of their consensual sexual activity. It should not make a difference that their consensual activity took place in "virtual space" rather than in a physical room. She necessarily expected to be observed by the appellant in the live-streamed video, but did not expect he would make a permanent recording of her naked.

[20] A detailed analysis of all the circumstances leads to the same conclusion.

[21] I begin with the complainant's subjective expectation as accepted by the trial judge. The complainant disrobed in the privacy of her bedroom to engage in sexual activity while video-chatting with an intimate partner. She thought the video chats were live and "in the moment" conversations over the Internet. Her subjective expectation was that the appellant would see a fleeting image of her on his computer screen in real time. She did not know and did not expect that the appellant would make any permanent recording of her naked body. At trial, expert evidence confirmed that video chats on Skype are not routinely captured or preserved anywhere.

[22] The trial judge accepted the complainant's testimony that she had no idea that the appellant was taking screenshots of the live-streamed video. The trial judge also accepted the complainant's testimony that during their 18-month relationship, the appellant never once told her that he was capturing permanent still images of her naked body and saving them on his computer. Had she known, she testified that she would have been furious and stopped it immediately.

[23] The next question is whether the complainant's subjective expectation was reasonable in the circumstances.

[24] The appellant pointed out a screenshot may be easily taken by depressing a single key. He argued the complainant must be taken to have understood this and to have undertaken the risk that her partner in the sexualized video chat might take a screenshot of her. The analysis is not that simple. The Supreme Court, at para. 68 of Jarvis, said the question "whether a person can reasonably expect not to be the subject of a particular type of observation or recording cannot be determined simply on the basis of whether there was a risk that the person would be observed or recorded" [emphasis in original]. Rather, the question should be answered in light of the norms of conduct in our society.

[25] Two norms are especially pertinent in this case.

[26] The first is that individuals' privacy expectations for some body parts are reasonably higher than for others. The exposure of intimate body parts in the privacy of a bedroom attracts a high expectation of privacy. Here, the complainant was naked in her own bedroom and allowed only the appellant to observe her during the video chat.

[27] Second, there is a distinction between mere observation and recording a permanent image. This distinction is critical in this case. In Jarvis, the Supreme Court stated the broad principle that "the intrusion into our privacy that occurs when a person hears our words or observes us in passing is fundamentally different than the intrusion that occurs when the same person simultaneously makes a permanent recording of us and our activities". The Supreme Court pointed out that a visual recording captures detail "in a permanent form that can be accessed, edited, manipulated and studied by the person who created the recording and that can be shared with others": para. 62.

[28] Wagner C.J.C. also pointed out a recorded image can be shared with people "whom the subject of the recording would not have willingly allowed to observe her in the circumstances in which the recording was made": para. 74. This case illustrates the harm that can result from making a permanent recording. The screenshots taken by the appellant were later distributed to many of the complainant's professional and personal contacts.

[29] Wagner C.J.C. explained that if there were no distinction between observation and recording, s. 162(1) would not apply to the non-consensual recording of a sexual partner engaged in sexual activity and the subsequent distribution of the recording. That is because s. 162(4) makes it an offence to distribute a recording one knows was obtained by the commission of an offence under s. 162(1). Wagner C.J.C. said this was the very type of conduct that initially spurred the legislative reform leading to the enactment of s. 162(1), citing Voyeurism as a Criminal Offence: A Consultation Paper, at p. 6.

[30] I am satisfied the complainant was entitled to reasonably expect the appellant would not record their sexual activities in "virtual space" without her consent. The conclusion the complainant had a reasonable expectation of privacy in the circumstances of this case is consistent with Parliament's object in enacting the voyeurism offence to protect individuals' privacy and sexual integrity, particularly from new threats posed by the abuse of evolving technologies.

D. "Surreptitiously" and the Mental Element of the Offence of Voyeurism

[31] Section 162(1) requires that the person who observes or makes a visual recording do so "surreptitiously". Jarvis is the only voyeurism case decided by the Supreme Court, and the meaning of "surreptitiously" was not at issue as it was conceded. Mr. Jarvis had used a miniature camera hidden in his pen.

[32] The appellant submits the trial judge in this case erred in law in dealing with the mental element of voyeurism by not giving proper effect to the word "surreptitiously".

(1) The Appellant's Position on "Surreptitiously"

[33] The appellant submits the trial judge, in deciding the appellant acted surreptitiously, erred by focusing on the complainant's perspective and the fact that she did not consent to the screenshots. He submits that a subject's lack of consent to being recorded is not an element of the offence and is insufficient to prove the accused acted "surreptitiously".

[34] The appellant cites the comment of Rowe J., writing for the concurring minority in Jarvis, at para. 139, that the reasonable expectation of privacy element and the "surreptitiously" element should be kept distinct. Rowe J. said "[s]urreptitiousness relates to the actions of the observer, while the reasonable expectation of privacy pertains to the individual being observed or recorded". Rowe J. gave the example of a person approaching a woman and pointing a camera at her body at close range. This action would invade the woman's reasonable expectation of privacy but would not satisfy the surreptitiousness element in s. 162(1). He added another example of the opposite. A person in the public area of a shopping mall who was recorded by concealed security cameras could not be said to have a reasonable expectation of privacy with respect to the recording, even though it had been captured surreptitiously.

[35] The appellant says that Rowe J.'s comments provide a useful lens through which to consider the meaning of "surreptitiously". It is not enough, as the trial judge found, that the complainant did not at the time consent to the recording and in fact did not have any knowledge the recording was being made. The perspective of the accused is central. In order to establish the offence, the Crown must prove the accused had the state of mind of intending to act "surreptitiously".

(2) The Crown's Position on "Surreptitiously"

[36] The Crown submits that the meaning of "surreptitiously" advocated by the appellant would fail to achieve the object of the legislation. The Crown takes the position that the mental element of the crime of voyeurism is knowledge. That is, the prosecution can establish an accused acted "surreptitiously" by proving the subject was unaware she was being recorded, and the accused knew or was wilfully blind to the fact the subject was unaware. The Crown says any recording made without a subject's knowledge interferes with her sexual integrity, whether or not the accused intended to conceal the recording.

[37] The Crown emphasizes that new risks of abuse have been created by current and emerging technology. Technology has changed how recordings are made. Individuals no longer know and have no way of knowing when another is employing technology to record them. Miniature cameras that may be concealed or disguised are readily available. People are habituated to the presence of computers and smart phones, and may not be aware these are being used to record them. A person's loss of sexual integrity flows directly from the fact she was recorded without her knowledge, irrespective of whether the accused took some active steps to hide what he was doing. Recording a person without her knowledge deprives her of the opportunity to choose whether to allow a permanent recording to be made. Individuals need to know whether they are being observed or recorded to keep control of their sexual selves and protect their sexual integrity.

[38] The Crown says only its approach will give effect to Parliament's intent in enacting the voyeurism offence to protect individuals' privacy and sexual integrity. The Crown says requiring the prosecution to prove the accused intended to act "surreptitiously" would unduly narrow the provision's application.

[39] The Crown offers the example of an accused, who with his smart phone apparent on his bedside table, records consensual sexual activity with his partner without his partner's knowledge. In such a case, the Crown says the accused should not be absolved of voyeurism even though he could argue he did nothing to conceal the smart phone.

[40] In order to ensure that such situations are within the ambit of the voyeurism offence, the Crown submits that the mental component of surreptitiousness must be knowledge: did the subject know she was being observed and recorded, and importantly, did the observer know or was he wilfully blind to the fact that the subject was unaware she was being recorded?

(3) The Meaning of Surreptitiously

[41] There is little judicial consideration of the meaning of "surreptitiously". This is not surprising because whether the accused has acted surreptitiously is typically not an issue in voyeurism cases. In the typical voyeurism case, the accused is a third party who has used a hidden camera. The use of a hidden camera will generally establish surreptitiousness. In this case the complainant knew the accused was viewing her through a webcam.

[42] The words "surreptitious" or "surreptitiously" appear in other provisions of the Criminal Code. Section 191(1) makes it an offence to possess, sell or purchase equipment the design of which renders it primarily useful for the surreptitious interception of private communications. Section 364(1) makes it an offence to fraudulently obtain food, beverage or accommodation. Section 364(2) creates a presumption of fraud when the accused surreptitiously removes or attempts to remove his baggage from the establishment, or has surreptitiously left the premises.

[43] These provisions give no reason to believe surreptitiousness has a special technical meaning in the Criminal Code. "Surreptitiously" in s. 162(1) must be given its ordinary meaning.

[44] The definition of "surreptitious" from the Canadian Oxford Dictionary, 2nd ed., was quoted by the court in R. v. Lebenfish, 2014 ONCJ 130, 10 C.R. (7th) 374, at para. 25: "obtained, done, etc. in secret or by stealth or by illicit means; clandestine". The trial judge in this case quoted the definition of "surreptitious conduct" from Black's Law Dictionary, 9th ed.: "unauthorized and clandestine; stealthily and usually fraudulently done". These are useful definitions, but they use other words, such as stealthily and clandestinely, which themselves may invite definition. In oral argument, the appellant's counsel accepted the definition of "surreptitiously" in the online Oxford English Dictionary, at http://en.oxforddictionaries.com, which uses simpler words: "[i]n a way that attempts to avoid notice or attention; secretively".

[45] The question whether the word "surreptitiously" as used in s. 162(1) included intent as part of its meaning came before this court in R. v. N. (M.E.), 2014 ONCA 69, leave to appeal to S.C.C. refused [2015] S.C.C.A. No. 278. The facts of the case are not apparent as the appeal was dismissed in brief reasons. The court stated, at para. 4, "[a]ssuming, without deciding, that the word 'surreptitiously' does include intent as part of its meaning, in our view the trial judge found that the appellant intended that the complainant not be aware that she was being photographed".

[46] I am satisfied that the ordinary meaning of the word "surreptitiously" does include intent as part of its meaning. A person who observes or records with the intention that the subject not be aware that he is doing so, is attempting to avoid notice or attention. Moreover, I consider N. (M.E.)'s articulation of the mental element to be apt. The mental state required by the word "surreptitiously" in s. 162(1) is the intent the subject not be aware that she is being observed or recorded. In a prosecution under s. 162(1)(b), the Crown may prove the accused acted surreptitiously by proving that he observed or recorded the subject with the intention she be unaware he was doing so.

[47] In a case in which the accused testifies, the determination of his mental state may depend chiefly on whether he is believed or not. Where the accused is not believed or does not testify, his state of mind may be based on evidence of secretiveness or stealth, or may be inferred from the relevant circumstantial evidence. Evidence that the complainant did not consent and was not aware the accused was recording her will be relevant circumstantial evidence. This, together with evidence that supports the finding the accused knew, or was wilfully blind, the complainant was unaware he was recording her, may well provide a compelling basis for the inference the accused intended the complainant remain unaware of his action. Also, as with inferring intent for any crime, the law presumes that a person intends the ordinary consequences of his voluntary acts.

[48] Understanding the word "surreptitiously" in this way would not prevent a successful prosecution in the Crown's example of the smartphone on the accused's bedside table recording consensual sexual activity. In the example, the accused would have had to initiate the smart phone's video recording mode and position the device so its camera focused on the sexual activity. Where the complainant testifies that she did not consent to being recorded and was unaware the recording was being made, and without evidence to explain the positioning and active state of the phone, the fact-finder would have an adequate basis to infer that the accused intended the complainant be unaware he was recording her.

[49] In Lebenfish, the trial judge found that the accused's picture-taking was not "objectively surreptitious". He found it unnecessary to consider whether the accused had acted "subjectively surreptitiously". Such an analysis leads to unnecessary complication. The word "surreptitiously" refers not to what the accused does, but to the state of mind with which he does it. The required criminal intent for the "surreptitiously" element in s. 162(1) has been proven where the Crown establishes that the accused intended the complainant be unaware he was observing or recording her.

(4) Application to This Case

[50] The appellant submits that the trial judge erred in two ways. First, he says the trial judge assessed the surreptitiousness issue from the perspective of the complainant, rather than focusing on the appellant's state of mind. Second, he says there was no evidence to support the trial judge's finding the appellant acted contrary to the parties' "tacit agreement" that the video chats would not be preserved in any manner.

[51] The trial judge's reasons must be read as a whole. After finding that the complainant was in circumstances that gave rise to a reasonable expectation of privacy, the trial judge turned to the question whether the appellant had acted surreptitiously. He began by noting the conduct of the appellant in this case was "strikingly different" to that in Lebenfish. I take the observation to be that while Mr. Lebenfish's picture-taking was apparent to others at the beach, the appellant took the screenshots in a way that was not apparent to the complainant.

[52] The trial judge set out the circumstances in which the screenshots were taken. The appellant and complainant "were engaging in intimate Skype video sessions during which [the complainant] was nude". He noted the complainant's perspective. She "had only agreed to her nude images being transmitted 'live' to the [appellant's] computer". The appellant had captured still nude photographs of the complainant from the video chats without her consent or knowledge.

[53] The trial judge observed the appellant's "conduct exceeded the parameters of what had been agreed to by two intimate partners". The two intimate partners had agreed to connect through the Internet for video chats. The complainant had agreed to her nude images being "live-streamed" to the appellant's computer. These were the parameters of what the parties had agreed to. The taking of the screenshots exceeded those parameters.

[54] As the appellant points out, there was no explicit evidence of any agreement between the complainant and appellant that no screenshots would be taken. However, I do not accept that the trial judge's remark that the appellant had acted contrary to the parties' "tacit agreement" is unsupportable. The "tacit agreement" to which he referred is that which exists between all intimate partners to consensual sexual activity -- namely, that neither one will exceed the parameters of what has been agreed to without obtaining consent. There is nothing contentious about this. In in-person consensual sexual relations, exceeding the parameters of what has been agreed to would likely breach the criminal law.

[55] Moreover, the trial judge did not err by unduly focusing on the complainant's state of mind. The trial judge did address the appellant's state of mind. He repeatedly stated the appellant had acted "secretly" and that his actions were "clandestine". The appellant's state of mind could be inferred from the circumstantial evidence. The complainant did not know the screenshots were being taken. The appellant never told the complainant he was taking screenshots; the subject of taking screenshots never came up during the parties' 400-odd video chats. The complainant could see the appellant during their video chats, and he had taken the screenshots in a way that the complainant had not noticed. After taking the screenshots the appellant never mentioned them. Her lack of awareness could also be reasonably expected under the totality of these circumstances. These facts supported the trial judge's inference that the appellant had intended that the complainant not know he was taking screenshots of her.

[56] There is one further matter left to address. On appeal, the appellant points to a text-based Skype message he submits should have alerted the complainant to the fact that he was "taping" her every night. On appeal, for the first time, he says this is relevant circumstantial evidence as to whether he intended the complainant not know he was taking the screenshots. He argues that the trial judge's reasons are deficient because they contain no mention of this text message.

[57] I would not give effect to this argument. Only a snippet of the entire conversation was introduced, and without any context. Defence trial counsel used the snippet, unsuccessfully, in cross-examining the complainant. The trial judge, as he was entitled to, accepted the complainant's clear and strenuous claim that the appellant had never told her he was taking screenshots during their video chats. Defence trial counsel did not mention the snippet in closing argument despite having ample opportunity to do so in response to questions by the court.

[58] It is elementary that a trial judge does not have to discuss every piece of evidence in his or her reasons. The trial judge did not err by not dealing with an inconsequential item of evidence not mentioned by defence trial counsel in his closing address.

[59] On a final note, I acknowledge in this case that the analyses of the reasonability of the complainant's expectation of privacy and the appellant's surreptitiousness draw on some of the same circumstances. Wagner C.J.C., in para. 33 of Jarvis, recognized this might be so. He noted that surreptitiousness could be one of the considerations taken into account in assessing whether the expectation of privacy was reasonable, though it should not be allowed to overwhelm that assessment. As Rowe J. stated, in para. 139: "The two concepts are related in the sense that one informs the other; but the concepts are distinguishable" and "remain distinct". While the two elements inform each other in this case, they may not in other circumstances.

E. Conclusion

[60] For these reasons, I would dismiss the appeal.

Appeal dismissed.

Footnote 1: At a late stage of the preparation of these reasons, the Supreme Court released its decision in R. v. Mills, 2019 SCC 22. Mills deals with the expectation of privacy in electronic text communications in the context of Internet luring under s. 172.1 of the Criminal Code. The circumstances of Mills drastically differ from this case. None of the four sets of reasons in Mills referred to the Jarvis decision. In my view, Mills has no relevance to this case.

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