WARNING

The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.

(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.

Court Information

Court File No.: Central East - Newmarket 4911-998-09-11346-00; 4911-998-10-01358-00

Date: 2012-06-21

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

R.M.

Before: Justice K.P. Wright

Reasons for Judgment released on: June 21, 2012

Counsel:

• T. Schvalb for the Crown
• The accused R.M. on his own behalf

WRIGHT J.:

Introduction

[1] Mr. R.M. comes before this court facing one count of voyeurism, one count of mischief arising out of an incident that took place between November 1 and December 9, 2009.

[2] He is also facing an additional charge of failing to comply with a recognizance arising out of an incident on February 7, 2010.

[3] Mr. R.M. represented himself at trial. Defence counsel Mr. Starr was appointed pursuant to s. 486.3(2) of the Criminal Code to cross-examine the complainant. Mr. Starr was present for the first two days of trial; he conducted the cross-examination of the complainant and provided Mr. R.M. with legal advice on a variety of other issues. At the outset of trial, after consulting with counsel, Mr. R.M. consented to having a joint trial on both informations.

[4] The trial of this matter was heard intermittently over the course of five days, from October 17, 2011 through May 3, 2012. The Crown called 10 witnesses in total.

[5] No evidence was called by defence.

[6] The matter was put over to today for judgment.

[7] This is my judgment.

Overview of the Evidence

[8] I will now give a brief overview of the evidence as it relates to the counts of voyeurism and mischief. I will further develop the evidence when necessary in my analysis.

[9] There is no dispute, and D.S., the complainant testified, that she and R.M. met in 1999 and had become friends. In August 2009, the two had decided to rent a house together. For Ms. S. the decision to move in to a house with Mr. R.M. was born out of necessity. After 3 years of living with her parents she was ready to move out. However she had a large dog, a Rottweiler, that limited her rental options. When her long time friend Mr. R.M. suggested they rent a house together she agreed. She knew Mr. R.M. was attracted to her, however Ms. S. considered the relationship to be strictly platonic one and had no romantic interest in him whatsoever.

[10] On the evening of December 9, 2009, Ms. S. was making her way home from work and noticed Mr. R.M.'s truck parked in a plaza on Davis Drive in Newmarket. When she arrived home her attention was drawn to Mr. R.M.'s computer. Ms. S. noticed a small image on Mr. R.M.'s computer monitor and upon closer inspection recognized it to be her bedroom. Suspecting that it might be a live feed, as opposed to a still image, she went into her bedroom and moved a blanket that was on her bed. When she returned to the computer the image showed the blanket had been moved and her suspicions were confirmed that it was a live feed. After speaking with a friend, Ms. S. decided to place a call to the police. Police attended within 15 minutes of receiving the call.

[11] Cst. Gaudet and Cst. Riemer of the York Regional Police attended at Ms. S.'s residence in response to the radio call. Both officers testified and confirmed that they instructed Ms. S. to enter her bedroom while they watched the computer monitor. Both observed her moving in and out of the room on Mr. R.M.'s computer monitor. They simultaneously noticed a cursor moving around on the computer screen that was not being operated by them or anyone in the house. As a result, they concluded that the image on the computer monitor was live feed and that it was being remotely accessed by someone at another location.

[12] Cst. Riemer then entered Ms. S.'s bedroom to look for a camera. He was in full uniform. He found a camera lens, the size of a drywall screw, in the bedroom closet on the back wall. Cst. Gaudet was watching Cst. Riemer conduct his search on the computer monitor. Simultaneous with Cst. Reimer discovering the camera, the cursor on the computer monitor started deleting and closing down files.

[13] Upon further investigation, the officers located the camera and circuit board in the laundry room behind a piece of drywall.

[14] Shortly after finding the camera and circuit board, Mr. R.M. was located and arrested just outside of JK Computers in Newmarket. This is located in the same plaza where his car was seen by Ms. S. on her way home. Mr. R.M. had been visiting with friends at the computer store in that plaza after hours. During his visit he had been using his laptop computer. That computer was turned over to police and Cst. Thompson recovered a video recording that showed a male setting up a camera and female disrobing and getting dressed. The male was identified by Det. Thompson and Ms. S. as Mr. R.M.. The female in the video recording was identified as D.S..

Analysis and Findings

[15] Much of the evidence in this case is not in dispute.

[16] There was no cross-examination, nor is there any dispute that a camera and circuit board were found by York Regional Police in a shared wall between the laundry room and Ms. S.'s bedroom.

[17] There was no cross-examination or dispute that the camera was positioned inside Ms. S.'s bedroom closet, which had no door on it and looked directly into her bedroom.

[18] There is no dispute that a video recording was made of Ms. S. in her bedroom changing after a shower in various states of undress.

[19] There is no dispute that there is a male person shown on the video recording prior to Ms. S. coming on screen.

[20] There was no cross-examination or dispute that all the computer equipment in the house belonged to Mr. R.M..

[21] D.S. was the main witness for the Crown. She presented as a timid, soft-spoken and respectful young woman. She gave her evidence in a thoughtful, fair and straightforward fashion. Despite the sensitive and emotional nature of her evidence, she was able to maintain her composure and testified without even the slightest indication of vengeance towards Mr. R.M.. She impressed me as woman of honesty and integrity. She was not contradicted at all in cross-examination. I find her to be both credible and reliable and I fully accept her evidence.

[22] Ms. S. viewed the video recording for the first time in the court room. That video recording is marked as exhibit 5 on this trial. Her reaction was an emotional one, which under the circumstances was to be expected. She had no knowledge that the camera had been installed or that she was being recorded. She quickly identified the view from the camera to be of her bedroom and bedroom closet.

[23] She, without hesitation, identified the male on the recording to be that of Mr. R.M.. There is no issue; Mr. R.M. is a man that she is very familiar with. She has known him for over 10 years and had been living with him for a number of months at the time of this incident. I fully accept her evidence that it was Mr. R.M. on the camera.

[24] She then identified herself as the woman on the video recording. She is seen entering her bedroom after showering; she disrobes and proceeds to get dressed. The video is very explicit.

[25] Ms. S. recalls that the tops she wore on that occasion she had only worn once. She believes she wore them sometime between December 6 and December 9, although she can't be certain. I am not troubled by her lack of specific recollection on this point. I am fully satisfied that she wore the tops only once and did so sometime between November 1 and December 9, 2009, as set out in the information.

[26] Cst. Gaudet and Cst. Riemer of York Regional Police both attended at Ms. S.'s house in response to a radio call. Both officers testified with the aid of their notes but I find they both had an independent and clear recollection of the incident separate and apart from their notes. They were not cross-examined by Mr. R.M.. They were professional and fair in their testimony. I find them both to be credible and reliable and I fully accept their evidence.

[27] They both viewed D.S. enter her bedroom on the computer monitor, which confirmed for them it was a live feed. More alarming was when Cst. Riemer located the camera in the Ms. S.'s closet and the remotely operated cursor begin closing and shutting down files on the computer.

[28] There is no dispute, and I find that these officers did locate a camera and circuit board in the laundry room wall of the residence.

[29] Alex Simon, the owner operator of JK Computers in Newmarket, also testified for the Crown. He had known Mr. R.M. for four years at the time of this incident. Mr. R.M. was a regular visitor to his computer store. On December 9, 2009, Mr. R.M. had come to the shop after hours, where he and a few others gathered in the basement to watch a sporting event on television. Mr. Simon said Mr. R.M. was on his laptop computer while the others watched television.

[30] Mr. Simon said that a few hours before Mr. R.M. arrived he had received a text message from Mr. R.M. asking about a free program that could be downloaded onto your computer called Team Viewer. Mr. Simon explained that Team Viewer allowed a user to remotely access any computer from another location as long as they had a password and the computer they were accessing remotely was turned on.

[31] Mr. Simon said that when the police attended inside his shop, after Mr. R.M. was arrested, he turned Mr. R.M.'s laptop over to them. He said that approximately 10 minutes before police arrival, Mr. R.M. closed his laptop, placed it under his chair and went upstairs. He said that no one touched Mr. R.M.'s computer from the time he closed it until it was turned over to the police.

[32] Mr. Simon was a straightforward, honest witness. He clearly did not let his friendship with Mr. R.M. interfere with his obligation to be a forthright witness. I find him to be a credible and reliable witness and I accept his evidence fully.

[33] I am satisfied and find that it was Mr. R.M.'s laptop computer that was turned over to York Regional Police by Mr. Simon.

[34] Det. Thompson of York Regional Police testified as an expert witness with regard to the computer data recovery, EnCase computer program and computer parts and components. He gave his evidence in a fair, straightforward, professional manner. He was not contradicted in cross-examination. I find him to be a credible and reliable witness and I accept his evidence fully.

[35] Det. Thompson said he received Mr. R.M.'s laptop into his possession with a view to accessing it. The continuity of the laptop was never made an issue in this trial and I am satisfied that it was Mr. R.M.'s laptop that Det. Thompson took into his possession. Once in his possession he accessed the hard drive and made a copy of it. In his review of the hard drive he found a video file that depicted a male setting up a camera inside a bedroom closet, the male leaving the room and a female entering and disrobing.

[36] There was some issue about the date stamp on the video file that was recovered. Det. Thompson testified that the date stamp is not always accurate and can easily be changed by anyone with administrative rights to the computer. I accept his evidence on that point and as such I do not attach any weight to the date stamp on the video file.

[37] Det. Thompson testified that he made a still photograph from the video of the male who appeared to be setting up the camera. The photograph is currently marked exhibit 19 in this trial. Det. Thompson testified that the male in the photograph is Mr. R.M.. I accept his evidence in that regard.

[38] There is one issue with Det. Thompson's evidence. He failed to enter into evidence, and/or identify, the video file that he found on Mr. R.M.'s laptop. I have thoroughly reviewed Det. Thompson's evidence and I have satisfied myself that at no point was his attention drawn to, nor did he reference exhibit 5, the video recording identified by D.S. to be the video file he recovered from Mr. R.M.'s laptop.

[39] I am satisfied that he did recover a video file and that from that video file he created a still photograph of Mr. R.M..

[40] Det. Thompson identified the video file he recovered numerically as 2054-09-11 02-45-06. I went back and watched the video file currently marked exhibit 5. Exhibit 5 is identified numerically as 2054-09-11 02-45-06. The numerical identification is identical and, as such, I have been able to satisfy myself that the video file recovered by Det. Thompson is same video file currently marked as exhibit 5 on these proceedings.

[41] After a thorough review of all of the evidence, I am prepared to make the following findings of fact:

• That it was Mr. R.M. who set up the camera in Ms. S.'s bedroom.
• That the camera was deliberately hidden in the drywall in her bedroom closet.
• That her bedroom was a place where she had a reasonable expectation of privacy and that it is a place where she would be expected to be nude.

[42] I have satisfied myself from Ms. S.'s evidence and that of Det. Thompson that the male seen on the video file is Mr. R.M..

[43] In addition, I have watched and reviewed this video recording a number of times and it is clear that Mr. R.M. was positioning and adjusting the camera. In my view the evidence is overwhelming that Mr. R.M. was setting up the camera to record Ms. S. in her bedroom without her knowledge. His movements and the obvious adjustments he makes to the camera could suggest nothing else.

[44] There seemed to be some suggestion from the defence that there was the possibility of someone else being responsible, perhaps a house guest or someone gaining entry surreptitiously. I don't accept this argument. Ms. S. stated that she had only a limited number of house guests, no more than seven, during the four months that she lived with Mr. R.M. and that those people were never left alone in her house. She knew of no other individuals who were alone in her home or who would want to commit such an act.

[45] Moreover, the evidence pointing to Mr. R.M. in my view is overwhelming. Not only is he in the video recording, setting up the camera, but it is his laptop that the video file is recovered on.

[46] In addition to all of this, he approaches the police in the parking lot of JK Computers and says to them, "I guess you are looking for me." Mr. R.M. suggests through his cross-examination that this phrase is open to interpretation. I disagree. Earlier that evening Mr. R.M. made inquiries about remote access with his friend, Mr. Simon. He also owned both computers involved and therefore could meet the requirement of having one turned on and establishing passwords. The observations the officers had of a cursor being used on the home computer were consistent with remote access. As such, the only logical inference is that Mr. R.M. was remotely accessing the camera from his laptop. When he saw the police officer in uniform in Ms. S.'s bedroom discover the camera, he knew at that point he had been found out. So when the police arrived at the computer shop, he was expecting them.

[47] There was some suggestion that Ms. S. recorded this herself to get rid of Mr. R.M. as a roommate because she had remedied some personal financial issues. I reject such a notion. There is no evidence to support this position, nor do I find Ms. S. the type of person who would do such a thing. As mentioned before, I find her to be a person of honesty and integrity. She demonstrated absolutely no sign of animosity or vengefulness towards Mr. R.M. despite being emotionally upset by it.

[48] I find that Mr. R.M. did, on at least two occasions, surreptitiously observe Ms. S. in her bedroom. The first occasion is between November 1 and December 9, 2009, and the second time was on December 9, 2009. As previously mentioned, I am not concerned with the date stamp on the actual video recording; I accept Det. Thompson's evidence that it is susceptible to being changed and therefore I find it to be an unreliable source. I do accept Ms. S.'s evidence that she wore the two tops she describe only once while living with Mr. R.M. and that was between the dates in the information.

Summary

[49] After a thorough review of the evidence, including my bench notes, transcripts, exhibits and submissions, I find the Crown has met its onus. I am satisfied that the Crown has proven the charges against Mr. R.M. beyond a reasonable doubt.

[50] Accordingly, I find Mr. R.M. guilty of count 1 and count 2.

Fail to Comply

[51] I have reviewed the evidence as it relates to the one count of failing to comply with a recognizance. The Crown led evidence from Mr. Pisani about the message that was communicated to Ms. S. from Mr. R.M.. The Crown also called Cst. Teresinki, who investigated the case and said he confirmed that Mr. R.M. was on conditions not to communicate with Ms. S.. The Crown, in my view, did not take it far enough. In order to prove a charge of fail to comply with recognizance the Crown must enter into evidence proof that the court order was made, that the offender entered into it and that he was aware of the terms.

[52] No such evidence was led in this case.

[53] As such, the Crown has not met its onus.

[54] Accordingly, Mr. R.M. will be found not guilty of failing to comply with a recognizance.

Released: June 21, 2012

Signed: "Justice K.P. Wright"

NOTE: As noted in court, on the record, this written judgment is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written judgment that is to be relied upon.