Ontario Court of Justice

Old City Hall – Toronto

Parties

Between: Her Majesty the Queen

And: Harvey Lebenfish

Counsel and Hearing

For the Crown: C. Sweeny

For the Defendant: Self-Represented

Heard: September 11 and November 13, 2013 and January 14 and 15, 2014

Reasons for Judgement

MELVYN GREEN, J.:

A. INTRODUCTION

[1] "Voyeurism", per se, was not subject to criminal prosecution in Canada a decade ago. This ostensible lacuna in the criminal law was filled in 2005 when Bill C-2 received Royal Assent. The voyeurism provision which then came into force – s. 162 of the Criminal Code – addresses two social harms: sexual exploitation and breaches of privacy interests. This case deals, in part, with the latter policy goal and, in particular, the reach of s. 162 where the impugned conduct occurs in a public venue.

[2] The activity here at issue occurred at Hanlan's Point, a public beach on the Toronto Islands, a short ferry ride from the City's waterfront. Part of the beach – the part hereafter referred to as "Hanlan's Point" – is designated as "clothing optional". Harvey Lebenfish, the defendant, attended Hanlan's Point at the front end of the 2012 Labour Day weekend. He brought his nine-month old son with him. He also brought his camera and took several dozen photos of unclothed women during the course of the afternoon. The defendant's conduct was brought to the attention of the police. In the result, he was arrested and charged with voyeurism (pursuant to s. 162(1)(b) of the Code) and mischief (s. 430(1)(c)). As always, the legal burden rests on the Crown on the conventional criminal standard of proof beyond reasonable doubt respecting each essential element of these two offences.

[3] The Crown called only two witnesses: a woman complainant and the arresting officer. The defendant testified. He retained counsel through the evidentiary portions of the proceedings but represented himself during the final submissions. The case gives rise to several complex and relatively novel issues. Mr. Lebenfish is not a lawyer. Nonetheless, and as rightly acknowledged by Crown counsel, he has demonstrated commendable forensic industry and ingenuity.

B. EVIDENCE

(a) Introduction

[4] Hanlan's Point has long been a nude sunbathing destination in Toronto. Once primarily a haven for members of Toronto's gay and naturist communities, it has attracted a wide array of sun-lovers, including families, since part of it was officially recognized as a "clothing optional" beach by municipal bylaw in 2002. Some visitors doff all their clothes on warm and sunny days and other exercise the option to remain in bathing suits. Curiosity likely draws some beachgoers, and undoubtedly a few attend to gawk at the nude sunbathers.

(b) Testimony of the Crown Witnesses

[5] M.W., 33, was one of hundreds of beachgoers at Hanlan's Point on Friday, August 31, 2012. M.W. visits the beach a few times a year and was in the company of her sister on this occasion. She arrived around noon, disrobed, swam and hung out. About mid-afternoon she went to the water's edge to take some photos of kite surfers. On returning to her blanket a woman told M.W. that a man had been taking photos of her, and pointed to the defendant, about 30 meters distant. M.W. was surprised. She approached the defendant, nude but for his hat, who was near a stroller containing a diapered baby. He affirmed that he had taken her photo. M.W. told him this was "not okay", that he could not take nude photos of her without her consent. The defendant insisted he could. She wanted the photos deleted. The defendant did not want to surrender his digital camera but he agreed to delete the photos as he crouched by the stroller and she looked over his shoulder to ensure their removal. There were about ten to twelve photos of M.W. in all, shot from the side and behind and capturing her exposed breasts and buttocks. There were no frontal photographs of M.W., but she recognized herself in the images as a result of a distinctive tattoo.

[6] Satisfied that all the images of her had been deleted, M.W. returned to her blanket. She spoke to others of what had occurred. They advised her that the defendant's behaviour was inappropriate. M.W. then alerted the beach lifeguards who, in turn, called the police. M.W. felt "violated" by the defendant's conduct. While she "obviously expect[ed] to be seen" on the beach, she did not equate her nudity with making herself sexually available.

[7] The presence of the stroller had made the defendant somewhat conspicuous, M.W. having seen him pushing his son along the beach both before and after their exchange. The defendant, says M.W., was "confronted" after the incident by a couple that were "aware of what had happened", but there is no evidence of the content of the ensuing conversation. M.W. remained on the beach for the rest of the afternoon, as had been her original plan, before heading to the Ex.

[8] M.W. agreed that many of those on the beach had cameras and camera-equipped smartphones. People were taking pictures at the beach – but only, M.W. assumed, of persons who were aware they were being photographed. Although some of those with whom M.W. subsequently spoke expressed anger and frustration, she understood that there was no official policy regarding photography at Hanlan's Point at the time. There was certainly no signage prohibiting photography. Since then, beginning in the early summer of 2013, "photography prohibited" signs had been posted at the beach.

[9] Cst. Steven Balice and his escort, both member of the Toronto Police Service's Marine Unit, responded to the lifeguards' late-afternoon summons. Balice arrested the defendant for "voyeurism", explaining that the charge involved taking photos without the subject's consent for the photographer's sexual gratification. The defendant, who was still nude, appeared nervous and particularly concerned about the impact of these events on his infant son. At Balice's request, the defendant produced his digital camera. It measures a relatively compact seven by four inches, is about one inch deep and has an integrated zoom lens. Balice promptly seized the camera. A question-and-answer followed, during which the defendant advised the officer that he had erased all the photos of the complainant and that he had taken them for his "personal use". The defendant said he had no idea that he required his subjects' consent to take their photos. On inspecting the camera, Balice found many digital images of nude persons on the beach, almost all of which were shot from behind the subjects. Balice could not identify any of the persons in the photographs. The defendant was allowed to dress before boarding the police boat sometime after 6pm.

[10] Forty-seven images digitally date-stamped to August 31, 2012 were entered as an exhibit, the defendant conceding that he had taken the photos at Hanlan's Point that day. The photographs are all of adults, predominantly women. The photographer's point-of-view is chiefly from behind and, to a lesser degree, from the side of his subjects. The images are no more prurient or intimate than those appearing in the celebrity magazines available at grocery store checkout counters. Nor are they any more detailed or graphic than would be available to the naked eye, unaided by magnification or any other form of optical enhancement.

(c) The Defendant's Testimony

[11] The defendant was 37 at the time of the offence. He has an abiding interest in nudity, as manifested in his attendance at World Naked Bike Rides, the Pride Parade and, on a couple of occasions, naturist or nudist resorts. He had made many daytrips to Hanlan's Point and had taken photos there on earlier visits. He explained his photography of nude women in public settings as having an "aesthetic" rather than any sexual purpose. He prefers to take candid pictures from the side and behind so that his subjects appear natural and uncontrived rather than the "posed" images that result from "face-on" compositions. His photography was a personal "hobby" and he had never published or posted any of his nude photographs. The defendant has no criminal antecedents.

[12] As regards the events of August 31st, the defendant's account of the shared events is essentially consistent with the narratives afforded through M.W. and Cst. Balice. The defendant had gone to the beach alone with his son, as his wife was busy that day. They arrived around noon. There were then hundreds of persons on the beach, the majority of whom were not nude. Many of the beachgoers had cameras, at least one of which was mounted on a tripod. There were no signs prohibiting photography, and to the best of the defendant's knowledge Toronto Parks had never issued any policies addressing the matter. The defendant had checked the City By-Laws in 2011 and satisfied himself (correctly, as it transpires: see Toronto Municipal Code, C-608, s. 47) that the only restriction on photography at a public beach pertained to doing so for remuneration absent a permit.

[13] The defendant shot profile photos of various nude women at the beach throughout the afternoon. While his camera had a zoom lens, an earlier accident had effectively locked the lens into a fixed position. The defendant was sitting at the shoreline when he took the digital images of M.W. She was also at the shoreline and about sixty feet to his right at the time. The infant's stroller was about six feet from the defendant and, in his view, did not in any way obstruct or conceal his activity. There was, he says, nothing "secretive" about his beach photography and he was effectively indifferent to whether M.W. or anyone else knew he was taking photos of nude beachgoers.

[14] M.W. approached the defendant and, as he recalls, told him she was not there to have her picture taken. Respecting M.W.'s perspective and to alleviate her concerns, he agreed to and did delete her images from his camera. The defendant acted out of courtesy rather than any sense of obligation. He remained at Hanlan's Point until arrested by the police some hour or two later. He saw no reason not to continue enjoying a pleasant day at the beach with his son.

[15] A year earlier, during the summer of 2011, a man at the same beach had objected to the defendant's photo-taking. Other than M.W., this man was the only person who had ever taken issue with the defendant's nude photography at Hanlan's Point. The man characterized the defendant's conduct as poor etiquette, although he conceded, having consulted the police, that there was no reasonable expectation of privacy at the beach. The defendant's view was that the etiquette to which the man alluded applied to private nudist facilities rather than public beaches. The naturist resorts the defendant had attended were private clubs. They did not allow cameras or camera-equipped phones on their premises and posted these prohibitions for their members' guidance. As regards public beaches, the defendant did not see any principled distinction between observing nude persons in a public setting and recording their image.

C. ANALYSIS

(a) Introduction

[16] The notion of privacy is central to the resolution of this case. The advent of social media, metadata collection, and national security internet surveillance has renewed public concern about the legal contours of individual privacy, both with respect to state investigations and those involving the unwelcome scrutiny of fellow citizens.

[17] Personal autonomy and dignity and their appropriate protection are evolving themes in the law of privacy. Related concerns inform many aspects of civil, regulatory and private law. Several provinces have created a statutory tort of, in effect, invasion of privacy (Privacy Act, R.S.B.C. 1996, c. 373; The Privacy Act, R.S.S. 1978, c. P-24; The Privacy Act, C.C.S.M. c. P125; Privacy Act, R.S.N.L. 1990, c. P-22) and Quebec has quasi-constitutionally enshrined a right to privacy (Charter of Human Rights and Freedoms, C.Q.L.R., c. C-12, ss. 4, 5 and 9; and see also Chapter III ["Respect of Reputation and Privacy"], Civil Code of Quebec, L.R.Q. c. C-1991, esp. ss. 35-36). Privacy interests – particularly those affected by governments' and businesses' routine aggregation of personal information – are protected nationally by federal and provincial legislation regulating record keeping and disclosure in the public and private sectors. (In Ontario, the relevant legislation includes the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, and the Personal Health Information Protection Act, Schedule A, 2004, S.O. 2004, c. 3.) Civil liability at common law for trespass to various domains of personal privacy (such as defamation, nuisance and breaches of confidence) is long settled. And, recently, the Ontario Court of Appeal recognized a general cause of action in tort ("intrusion upon seclusion") for invasion of privacy: Jones v. Tsige (2012), 2012 ONCA 32, 108 O.R. (3d) 241.

[18] In criminal courts, privacy claims ordinarily arise in the context of Charter litigation (in which, typically, constitutional guarantees against unreasonable search and seizure are invoked to suppress evidence resulting from impugned state conduct) and in those facets of the law of evidence where privacy interests are weighed against an accused's right to make full answer and defence (such as disclosure, third-party production and, most expressly, the regimes governing the admissibility of evidence of sexual offence complainants' sexual histories and the discovery of sexual offence complainants' and witnesses' personal records, as prescribed in ss. 276 to s. 278.9 of the Code). On rare occasion, as in the instant case, privacy interests are an essential component of the prosecuted offence. In such cases privacy is not approached as a constitutional guarantee against which to measure the gravity of state misconduct but, rather, as a normative concept the margins of which are determined by a number of situational factors. For example, the voyeurism charge, as here particularized, literally requires proof that the defendant's conduct offended the reasonable privacy expectations of nude beachgoers. Although less explicit, the mischief charge also raises concerns about interference with privacy interests. I return to these considerations in due course.

(b) Voyeurism

(i) Introduction

[19] An offence of "voyeurism" was first introduced in Parliament as part of Bill C-20, An Act to Amend the Criminal Code (Protection of Children and other Vulnerable Persons) and the Canada Evidence Act. The Bill died on the order paper when Parliament was prorogued, and died again, as Bill-C-12, in 2004 with the dissolution of the 37th Parliament. Near-identical measures – including the voyeurism provisions – eventually came into legal effect following their re-introduction as Bill C-2 in 2005. Mr. Irwin Cotler, then Minister of Justice, succinctly explained the rationale for the introduction of an offence of voyeurism to the House of Commons Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness. Bill C-2, he said,

… seeks to modernize the criminal law's response to the new ways in which acts of voyeurism are being committed today. The "peeping Tom through the window" offender, as he or she has been known from even just a few years ago, has largely been replaced today by persons who, with the advent of the Internet and the miniaturization of cameras and recording devices, can now peep and record viewing through a camera smaller than a pen that is hidden in a room miles away.

[20] The policy rationales for the creation of an offence of voyeurism (chiefly, technological advances and inadequacy of the law in responding to related harms), and the risks to privacy interests that underlie the initiative, are more fully developed in a "consultation paper" prepared by the federal Department of Justice in anticipation of the introduction of Bill C-20 in 2002: "Voyeurism as a Criminal Offence". As there explained, at pp. 1 and 5:

The rapid technological developments of recent years have brought many benefits to Canadian society, but they have also had implications for such basic matters as privacy and the role of the law. Web cameras, for example, which can transmit live images over the Internet, have raised concerns about the potential for abuse, notably the secret viewing or recording of citizens for sexual purposes or where the viewing or recording involves a serious breach of privacy. …

There is currently no specific offence in the Criminal Code that addresses voyeurism or the distribution of voyeuristic materials. It is true that existing provisions of the Code apply in some cases of voyeurism, such as those that involve child pornography or trespassing at night. However, with the new technology, voyeurism itself may now involve a breach of privacy much greater than could have been foreseen when the Code was drafted – one that undermines basic notions of freedom and privacy found in a democratic society.

Recent interest in the creation of a voyeurism offence also has been generated, in part, by occurrences for which there are currently no appropriate responses in the Criminal Code. The limitations of the current law are evident in two contexts. The first is that while some other offences in the Criminal Code cover particular aspects of voyeurism, there is no comprehensive statutory response to voyeurism. … While voyeurism may be captured by section 177 (trespassing at night), the scope of the offence is quite narrow as it applies only to persons who loiter or prowl at night near a dwelling house on the property of another person. The mischief provisions of paragraphs 430(1)(c) and (d) apply to voyeurism to the extent that the activity interferes with the victim's "lawful use, enjoyment or operation of property." Unfortunately, courts have disagreed about the scope and meaning of "lawful use, enjoyment or operation of property" so section 430 is of limited use as a vehicle for prosecuting voyeurism.

The second charge facing the defendant is, of course, that of mischief under s. 430(1)(c).

[21] The offence of "voyeurism" is now set out in sub-s. 162(1) of the Criminal Code. Underlined so as to highlight those portions directly relevant to the immediate prosecution, the provision reads:

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.

A "visual recording", as defined in sub-s. (2), includes "a photographic, film or video recording made by any means". The distribution of such recordings constitutes a separate offence: s. 162(4).

[22] The defendant is charged pursuant to the second of the three modes by which the offence may be made out (that is, clause 162(1)(b)). Although not perfectly tracking the statutory language, as particularized in the Information it is alleged that he,

… did surreptitiously make a visual recording of persons to wit: nude and in circumstances that gave rise to a reasonable expectation of privacy.

Contrary to the words of arrest, it is apparent that, as framed in the Information, there is here no burden on the Crown to establish that the defendant's recording was "done for a sexual purpose". An alleged invasion of a reasonable expectation of privacy is, rather, the gravamen of the offence charged.

[23] The elements of the offence of voyeurism are succinctly set out in R. v. Rudiger (2011), 2011 BCSC 1397, 278 C.C.C. (3d) 524 (B.C.S.C.), at para. 75:

The offence is committed where a person: (i) surreptitiously; (ii) observes or makes a recording; (iii) of a person who is in circumstances that give rise to a reasonable expectation of privacy; and

(as applies to the instant case): (iv) the person recorded is "nude".

See also R. v. Coombs, [2013] O.J. No. 3700 (S.C.), at paras. 31-32, and R. v. Keough (2011), 2011 ABQB 48, 267 C.C.C. (3d) 193 (Alta. Q.B.), at para. 147.

[24] It is undisputed that the defendant made visual recordings (the digital photographs) of nude persons. What is far less certain is whether he did so "surreptitiously" and "in circumstances that give rise to a reasonable expectation of privacy". I turn then to each of these matters.

(ii) "Surreptitiously"

[25] Although not a word of common legal usage, the word "surreptitiously" bears a common understanding. The Canadian Oxford Dictionary defines "surreptitious" as "obtained, done, etc. in secret or by stealth or by illicit means; clandestine". The entries in Black's Law Dictionary and The New Penguin English Dictionary are to identical effect. The "surreptitious" nature of the impugned conduct is rarely at issue in the relatively few reported cases respecting the offence of voyeurism. By way of example only, these cases include those in which:

• Video images were captured by way of a camera concealed in a stepdaughter's bedroom (R. v. S.W., [2011], O.J. No. 5555 (C.J.), R. v. F.G., [2011] N.J. No. 95 (P.C.)) and R. v. M.S.A., [2013] A.J. No. 489 (P.C.));

• A video-recording was made of a thirteen year old girl in a hotel shower by way of a camera secreted in a shaving bag (R. v. R.H.C., 2010 BCPC 475, [2010] B.C.J. No. 2960 (P.C.));

• A video camera was hidden in a wastebasket in an office washroom so as to afford an angled view of the toilet (R. v. Laskaris, 2008 BCPC 130);

• A man relieving himself at an office urinal was secretly photographed by a co-worker seated in a nearby closed toilet cubicle (R. v. Weinheimer, 2007 ABPC 349, [2007] A.J. No. 1459 (P.C.));

• The genital and anal regions of a young female child being changed by her caretaker in a park were videotaped by a man using a zoom lens and a "blind" while hiding in his car in a nearby parking lot (R. v. Rudiger, supra).

[26] There appears very little if anything patently surreptitious about the defendant's photography at Hanlan's Point. He was sitting or standing on a crowded beach for several hours on a sunny day. His camera, although compact, was not miniaturized or otherwise concealed or disguised. His stroller and infant son attracted rather than deflected attention. His assertions that there was nothing secretive about his recordings and that he was indifferent to whether others were or were not alive to his photo-taking efforts were effectively unchallenged, and I accept them. Further, it is clear that at least some of those on the beach observed his photography and brought his endeavours to M.W's attention. On its face, the defendant's conduct was, if anything, public (if not in fact conspicuous) – the antithesis of "surreptitious".

[27] The Crown theory, however, rests on a somewhat more nuanced platform than suggested by the circumstances I have just canvassed. The fact that the pictures were taken from the side or behind those photographed speaks, says the Crown, to their surreptitious quality. As M.W. testified, she was not aware that she was being photographed and, it seems reasonable to infer, would not have consented to being photographed nude. In short, the defendant did not want his subjects to know they were being visually recorded, and so intentionally shot them from angles that concealed his efforts.

[28] With all due respect, I have several difficulties with this argument. First, neither the absence of consent or awareness on the part of the person observed or recorded is an expressly requisite feature of the offence set out in s. 162. The provision could readily have been drafted to incorporate these elements. It was not. Instead, s. 162(1) focuses on the conduct of the accused, not the state of mind, acquiescence or cognizance of the alleged target of the impugned behaviour. Whether or not M.W. was conscious that she was being photographed, I have more than a considerable doubt that the defendant's conduct was surreptitious, as that word is commonly understood.

[29] I agree that that the absence of consent and awareness, when combined with tangible evidence of a hidden or disguised recording device, might well amount to a virtually irrefutable inference of surreptitious conduct – particularly in those situations (as in most of the cases summarized earlier), where the accused's conduct involves a single complainant in a private setting. That, however, is not the scenario before me. The case led by the Crown consists not only of the testimony of M.W. but, as well, photographs of several other persons, men and women, at Hanlan's Point on the day in question. I have no evidence as to whether these other persons – volitionally nude in a public place – knew that they were being photographed or, if so, whether they took exception to such recording. Nor in these circumstances do I think it right to speculate that these other persons' responses would necessarily emulate that expressed by M.W.

[30] Evidence pertaining to the awareness and consent of persons other than the single testimonial complainant is of particular moment in this case as the Crown was permitted to amend the original Information mid-trial to include such persons. As originally laid, the Information alleged that the defendant "surreptitiously made a visual recording of a person". At the Crown's request, the word "persons" was substituted for "person". Irrespective of M.W.'s "surprise", I simply have no idea as to whether any of the other "persons" (those whose images were preserved on the defendant's camera) were unaware of his photography. Assessed objectively, I have considerable doubt that the defendant's conduct was surreptitious.

[31] Finally, I note that there remains an unsettled debate, at least in Ontario, as to whether, as recently put in R. v. M.E.N., 2014 ONCA 69, at para. 3, "the word 'surreptitiously' … includes an element of mens rea, that is, the person must intend that the victim not know that he or she is being observed or photographed". The Court of Appeal expressly left the issue unresolved, deciding, at para. 4, that the trial judge, if implicitly, "found that the appellant intended that the complainant not be aware that she was being photographed". There is, however, at least a thread of authority from which to hang the proposition that mens rea is an essential component of "surreptitiously". In R. v. Keough, supra, one of the very few decisions to comprehensively analyze the scope and application of s. 162(1), Manderscheid J., satisfied himself as to the surreptitiousness element only upon concluding, at para. 149, that the accused not only did conceal the camera he used to record the sexual activity of the complainants (the physical act) but, as well, "had intended to conceal a camera and record whatever occurred in his spare bedroom" (emphasis added).

[32] M.W. was unaware that she was being photographed; other nude beachgoers may have been similarly ignorant. The defendant, of course, testified that he consciously photographed his nude subjects from behind or in profile so as to capture them in natural rather than contrived attitudes. I am not certain, however, that this expression of his intention amounts to surreptitiousness as the word is both commonly apprehended and employed in s. 162. The defendant, again, was taking pictures in the middle of a public beach; he saw nothing inappropriate about his conduct and was indifferent to whether other beachgoers (apart, of course, from the immediate subjects of individual photos) were aware of his efforts. Referring again to the dictionary definitions of "surreptitious" and accepting the ordinary meaning of the synonyms afforded, it is difficult to characterize the defendant's photography as "secretive", "stealthy", "illicit" or "clandestine". These words suggest an element of transgressive behaviour that, at the time of its occurrence, is hidden or obscured from the world at large. If definitionally correct, this approach to surreptitiousness – one that focuses on its transgressive quality – is inconsistent with both the defendant's state of mind and the ambient circumstances.

[33] These considerations are clearly of no moment in the vast majority of voyeurism prosecutions. Proof of an accused's objective concealment of a recording device in a private setting will almost inevitably result in the inference of his or her intentionality – as was the case in R. v. M.E.N., supra, where my review of the facta filed on appeal makes clear that the appellant was found to have taken a semi-nude cellphone video of his sexual partner in hotel room without the latter's awareness and contrary to her express directions. Even bearing in mind the distinction between intention and motive, it seems to me that an intention to act surreptitiously may be less certainly drawn in ambiguous circumstances such as those involving a public setting and general exposure of the impugned conduct.

[34] Given my conclusion that the Crown has failed to satisfy me that the defendant's conduct was objectively surreptitious, I, like the Court of Appeal in M.E.N., come to no firm determination as to whether proof of surreptitiousness also requires proof of subjective mens rea. I advert to the issue only to make clear my acceptance of the defendant's evidence regarding the openness of his photography and his indifference as to the general public's awareness of his conduct, lest this matter be subject to review.

(iii) "Circumstances that Give Rise to a Reasonable Expectation of Privacy"

[35] As said by the Supreme Court in R. v. Tessling (2004), 2004 SCC 67, 189 C.C.C. (3d) 129, at para. 25, "Privacy is a protean concept, and the difficult issue is where the 'reasonableness' line should be drawn". Determination of this boundary is "determined on the basis of the totality of the circumstances" (R. v. Edwards, [1996] 1 S.C.R. 128, at para. 45; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 18), a formulation expressly prescribed in s. 162(1). Further, a reasonable expectation of privacy is a normative rather than descriptive standard: R. v. Tessling, supra, at para. 42.

[36] These propositions, drawn from the prodigious jurisprudence pertaining to privacy rights developed in the context of Charter s. 8 analysis, are of general application to any evaluation of privacy claims. However, much of the s. 8 scaffolding is not so readily transposed to the assessment mandated by s. 162(1). As explained in R. v. Rudiger, supra, at paras. 81-84 and summarized at para. 85, when applying s. 162,

… there are no compelling state interests that justify or support compromising the dignity and autonomy interests that lie at the heart of privacy rights. There is no "search" or "seizure". The state is not involved. The expectation of privacy under s. 162 of the Criminal Code relates not to the accused but to a complainant. The entire framework of analysis is fundamentally different.

[37] I accept, of course, that there are different zones of privacy, that such interests may be affected in public as well as private settings, that technology (including the capacity to capture or memorialize an otherwise fleeting or distant observation by way of perceptual enhancement or recording devices) may materially alter the extent and quality of any intrusion, and that cognizable privacy is a relative rather than absolute concept. At bottom, however, the question remains the same: do the circumstances in which the impugned conduct occur give rise to a reasonable expectation of privacy?

[38] The conduct said to offend s. 162 here involves a visual recording of persons who elect to disrobe at a clothing optional beach. The nude beachgoers must anticipate that others will observe them at the beach. However, says the Crown, they did not abandon all personal privacy interests by removing their clothes on that beach. Rather, they maintained, and reasonably so, the expectation that they would not be photographed in a state of nudity, that their nude images would not be captured and permanently preserved by way of a digital recording. There are certainly dicta of high authority that reflect the distinction, for purposes of privacy expectations, between mere observations by third parties and the recording of those observations. In R. v. Wong, [1990] 3 S.C.R. 36, at p. 48, for example, La Forest J., writing for the majority, held that,

[T]here exists a crucial distinction between exposing ourselves to the risk that others will overhear our words, and the much more pernicious risk that a permanent electronic recording will be made of our words at the sole discretion of the state. Transposing to the technology in question here, it must follow that there is an important difference between the risk that our activities may be observed by other persons, and the risk that agents of the state, in the absence of prior authorization, will permanently record those activities on videotape …

However, the reasoning in R. v. Wong (and R. Duarte, [1990] 1 S.C.R. 30, on which it relies) is, unlike the scenario before me, clearly directed to situations where privacy rights are arguably infringed by state agents against whom these rights are constitutionally protected. More fact-specific, the assessment of reasonableness, even within the architecture of conventional s. 8 analysis, would likely be subject to a different calibration (if not a different result) if the setting were one in which the open use of recording devices was relatively ubiquitous, as in the case before me.

[39] The evidence of the reasonableness of the claim here advanced by the Crown is that primarily led through the testimony of M.W. She expected to be observed while nude on the public beach, but was offended by being photographed in that state. She also spoke of some others on the beach characterizing the defendant's conduct as inappropriate and of one couple "confronting" the defendant, although there is no evidence as to the content of this exchange. Further, the defendant testified to having been challenged by a single individual a year earlier on the basis that his photography did not comport with beach etiquette. As to the reasonable expectations of the many dozens if not hundred of other nude beachgoers, there is no evidence as to the attitudes or disposition of those whose images were located on the memory card in the defendant's camera. Nor do I have the benefit of any polls, expert evidence or even anecdotal accounts bearing on the reasonable expectations of the nude population at Hanlan's Point.

[40] I am prepared to infer that M.W. had a subjective expectation of privacy respecting being photographed on the beach while nude. I am equally prepared to infer that at least some others were displeased with the defendant's photography, although I cannot conclude that their reactions reflected more than aspirational disappointment rather than any sense of breach of their reasonable expectations in the circumstances. In the end, I am not persuaded that the defendant's photographing of nude sunbathers at Hanlan's Point occurred "in circumstances that give rise to a reasonable expectation of privacy" with respect to such visual recordings. I reach this conclusion in view of the following factors or circumstances that then prevailed:

• Hanlan's Point is a public beach.

• The beach is populated by both clothed and nude beachgoers.

• Those who elect to remove their clothes understand that others will observe their nudity.

• They also appreciate that many of those on the beach carry and use cameras and cellphones equipped with camera functionality.

• The taking of photographs is not prohibited by City by-laws.

• There is no signage prohibiting or even discouraging the use of cameras.

• There is no City policy addressing, let alone discouraging, the taking of photographs at Hanlan's Point.

• The photographs at issue were taken of mature adults.

• The same photographs preserve no more of the nudity the beachgoers elected to expose than would observation by the naked eye.

• There is no evidence of concern that any nude photography would be disseminated to others by any means.

Given this constellation of circumstances, I cannot find reasonable an expectation that nude beachgoers at Hanlan's Point would not be subject to visual recording of their nudity. The ambient circumstances, I find, are little different than those that would inform the assessment of reasonableness at Toronto's annual Gay Pride Parade where dozens, if not hundreds, of participants parade in states of semi- or complete nudity – and are routinely photographed without objection. To be clear, I would reach the same conclusion as to "reasonable expectation" in the presenting fact-pattern whether or not the onus was borne by the Crown.

[41] Perhaps unsurprisingly, this very issue was mooted in Parliamentary committee on early consideration of the proposed amendments: Hansard, House of Commons Standing Committee on Justice and Human Rights, 37th Parliament, 2nd Session, Meeting 73, October 23, 2003. A deputation from the Federation of Canadian Naturists (FCN) expressed some concern respecting the voyeurism provisions of what was then styled Bill C-20 and, in particular, their impact on photography at Wreck Beach, a public clothing optional beach in Vancouver often frequented by nudists. Mr. Howard Macklin, then Parliamentary Secretary to the Minister of Justice, clearly had difficulty with what he perceived to be the FCN position: "I think", he said at p. 1000, "I could understand if one were in a private club on private property. But I'm having difficulty trying to understand your expectation of privacy on a relatively public beach". The comments of Mr. Vic Toews (then Opposition Justice Critic, later the Minister of Justice, and currently a member of the Court of Queen's Bench of Manitoba) were even more pointed:

I have the same concern as Mr. Macklin. I have no concern about restrictions on photographing where there is in law a reasonable expectation of privacy. But where people have come to a public beach, public property, there is no reasonable expectation of privacy, through visual observations, recordings, or otherwise. …

It seems to me the naturists sort of want it both ways. They want the right to be nude in a public place, but they want restrictions on the right of others to observe that or take recordings of that.

If you want to go on private property, as Mr. Macklin has stated, away from the prying eyes of others, and be nude, I don't see any legal objection to that. If people come onto your private property and photograph you, that's wrong. There is a reasonable expectation of privacy, and that should be punished.

The comments of these parliamentarians are of no authoritative value nor are they necessarily indicative of Parliament's intendment respecting the matter before me. Further, I think the controversy considerably more subtle and complex than evidenced in this exchange. Nonetheless, the expression of bi-partisan harmony respecting the compass of reasonable expectations of privacy in the situation presented by the case before me is, if nothing else, comforting. Without pre-deciding the issue or endeavouring to influence any other jurist, I venture to suggest that a change in circumstances – such as the installation of prohibitive signage and appropriate by-law amendments – could lead to a recalibration of "where the 'reasonableness' line should be drawn" with respect to the visual recording of nude beachgoers at Hanlan's Point.

(c) Mischief

(i) Introduction

[42] Apart from voyeurism, the defendant is also charged (effectively in the alternative) with "mischief". That offence, as set out in s. 430 of the Code, reads:

430. (1) Every one commits mischief who wilfully

(a) destroys or damages property;

(b) renders property dangerous, useless, inoperative or ineffective;

(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or

(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

As particularized in the Information, the defendant is said to have committed mischief "by willfully interfering with the lawful enjoyment without legal justification of property, to wit: Toronto Island's Hanlan's Point Beach". The charge faced by the defendant is one under clause 430(1)(c). Although there is little if any modern authority on the issue, it is worth noting that the offence here charged pertains exclusively to interference with the "lawful … enjoyment of property", and it is this alleged consequence that the Crown must prove. Put otherwise, it is not alleged that the defendant interfered "with any person in the lawful …enjoyment … of property" as would be the case if the prosecution was framed in the language of clause 430(1)(d).

[43] It has been said that the offence of mischief "captures a range of offensive conduct as broad as perhaps any in the entire Code": M. Manning and P. Sankoff, Criminal Law (4th Ed.), LexisNexis, at p. 1051. Questions bearing on the meaning and scope of paragraphs (c) and (d) have generated considerable jurisprudential controversy, particularly respecting the word "enjoyment", as included in the instant charge, and the centrality of "property" to the harm to which the provision is directed.

[44] In R. v. Drapeau (1995), 96 C.C.C. (3d) 554, Fish J.A. (as he then was), authored the majority opinion for the Quebec Court of Appeal. Fish J.A reviewed the evolution of the offence of mischief (which, in his view, dealt primarily with "the integrity of the property itself and not with conduct affecting the exercise of property rights") and its placement within Part XI of the Code ("Wilful and Forbidden Acts in Respect of Certain Property"). He then concluded that mischief,

… remains an offence in relation to property or rights in property. …

The words in sec. 430(1) (d), "wilfully ... obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property", must be interpreted, I repeat, in a manner that does not do violence to the history of the crime they describe or to the context in which that crime appears in the Code.

Seen in this light, I do not believe that "enjoyment" in sec. 430(1) (d) refers to a purely subjective state, such as the nature or intensity of the pleasure derived from a property by its owner, possessor or occupant. Nor do I believe that a person who diminishes that pleasure, even knowingly, is liable for that reason alone to conviction for criminal mischief.

To conclude otherwise, in my respectful view, is to make of a crime in relation to property an offence against feelings and tastes.

With respect for the views expressed by my colleague Chamberland, I would not interpret the law so broadly as to permit that result, and then impose on policemen and prosecutors the thankless task of enforcing it. [Emphasis in original.]

Chamberland J.A., writing in dissent, advanced a much broader and elastic approach to the concept of "enjoyment", and one in which more orthodox notions of property rights or interests were considerably attenuated. As he wrote:

[T]he word "enjoyment" here has a much more inclusive meaning than just the fact of being the holder of a right to possess the property; it includes the action of obtaining from property, which a person lawfully holds, the satisfaction that this property can provide to that person.

Chamberland J.A.'s use of the word "holds" appears to derive from the fact pattern in Drapeau. The logic of his reasoning would readily extend to alternative activities such as "occupies", as seems clear from his opinion that the provision "cover[s] property in its dynamic aspect (employment, enjoyment or the exploitation of property), rather than its static aspect (ownership, rental or possession)".

[45] Chamberland J.A's view was "prefer[red]" and positively adopted by the Ontario Court of Appeal in R. v. Maddeaux (1997), 115 C.C.C. (3d) 122, a case addressing the meaning of "enjoyment" in paragraph s. 430(1)(c), as in the prosecution before me. Without intending to be exhaustive, the Court, at para. 13, noted that,

"Use" … would include being present in the apartment [the property at issue] for the purposes of cooking, eating, cleaning, resting, sleeping, listening to the radio and watching television. The word "enjoyment" might include any or all of those uses.

I think it fair to say that Maddeaux, which remains the law in Ontario, renders the element of property, at least in that sense in which propriety rights or interests are conventionally understood, somewhat incidental to the offences set out in clauses 430(1)(c) and (d). This is not to say, however, that the nature of the property at which an offence of mischief is alleged, be it understood only as "place" or "setting", has no bearing on an assessment of whether an interference with its enjoyment may have occurred. And although I decline to pursue the matter here, I also note that my research has failed to disclose a single reported or posted case in which mischief by way of interfering with the enjoyment of property is alleged to have occurred on public property – as is the Hanlan's Point beach.

[46] The assessment of privacy interests crucial to my determination of the charge of voyeurism also bears on the alleged offence of mischief. Several cases have recognized that an interference with such interests may ground a mischief conviction. In R. v. Almeida (2003), 177 O.A.C. 300, for example, the mischief upheld by the Court involved the constant video surveillance of a neighbour's backyard for over a month, despite the existence of a privacy fence and a written complaint of invasion of privacy. Privacy intrusions by way of surreptitious videotaping of a co-worker in a workplace shower area and a tenant in a rented room have also resulted in findings of guilt for mischief by way of interference with the enjoyment of property: R. v. King, 2006 ONCJ 537 and R. v. A.A., 2006 ONCJ 107, respectively.

(ii) The Actus Reus

[47] In R. v. Almeida, supra, at para. 3, the Court of Appeal, in reference to the allegations before it, described the requisite physical and mental elements of the offence of mischief under s. 430(1)(c) as follows:

In the present case, the actus reus of the offence was wilfully engaging in conduct that obstructed and interfered with the enjoyment of the neighbour's property. The mens rea was engaging in such conduct, knowing or being reckless to the fact that such conduct was interfering with the enjoyment of the neighbour's property.

[48] The act here alleged to constitute the offence of mischief is the defendant's willful interference with the lawful enjoyment of Hanlan's Point. The charge, as framed, does not assert that any person's enjoyment was compromised. Rather than parsing the matter too finely, I am prepared to treat M.W.'s allegations as the basis for the purported interference.

[49] As should be patent, M.W.'s assertion of interference with her lawful enjoyment of Hanlan's Point rests on a claim that the defendant violated her privacy interests. There is no other basis for the criminal allegation. I have already held that M.W.'s privacy expectations did not, in all the circumstances, reasonably include an expectation that she would not be photographed while sunbathing on a nude beach. To now hold that her subjective annoyance at such photography makes out the offence of mischief would permit unreasonable sensibilities to dictate, indeed criminalize, otherwise lawful conduct. Imagine a teenage boy who, on occasion, would look up from his book and gaze momentarily at the nude M.W. as she frolicked by the shoreline. Imagine, further, that M.W., took offence on learning of the adolescent's conduct, sincerely believed that his glances had ruined her day at the beach and reported the event to the police. Given the obvious limits of reasonable privacy expectations for nude sunbathers on public clothing optional beaches, I simply cannot conclude that this hypothetical interference with M.W.'s subjective expectation of privacy, no matter how earnestly held, could ground a charge of mischief for interference with her lawful enjoyment of the beach.

[50] The reasoning of the Court of Appeal in R. v. Almeida, supra, in which the accused constantly videotaped his neighbour's backyard, is instructive in this regard. As the Court, at para. 4, concludes:

In our view, the elements of the offence are made out on the undisputed facts. The video camera surveillance was carried out on a 24-hour basis, seven days a week over an extended period of time. We are satisfied that both on a subjective and objective basis, that conduct interfered with the neighbour's enjoyment of her property. [Emphasis added.]

Unlike the Almeida court, I am not here satisfied on an "objective basis" that the defendant's photography interfered with the reasonable privacy interests, and thereby the enjoyment, of M.W. or anyone else on the beach.

(iii) The Mens Rea

[51] The statutory use of the word "wilfully", as in s. 430(1), ordinarily requires proof of an elevated mental element often referred to as specific intent. This construction is here displaced by s. 429(1) of the Code which, in its relevant parts, reads:

429. (1) Every one who causes the occurrence of an event by doing an act …, knowing that the act … will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have caused the occurrence of the event.

Assuming, in arguendo, that,

• the "event" is the distress experienced by M.W. on learning that the defendant had photographed her in a state of nudity,

• this distress amounted to an interference with the lawful enjoyment (in particular, M.W.'s) of Hanlan's Point beach, and

• the defendant's photography was the "act" that "caused the occurrence of the event",

I am still unable to conclude that that the defendant took the photographs "knowing" that his act would "probably cause" the event to occur.

[52] The defendant had visited Hanlan's Point on many prior occasions during which he routinely photographed nude beachgoers. He knew that private naturist clubs, in sharp contrast to clothing optional public beaches, restricted photography on their premises. But for a single and somewhat dated exchange (for which occurrence he was the only testimonial source) there is no evidence that his conduct was the subject of complaint or even demurral. Nor is there any evidence of objection being taken to the photographic endeavours of the many others on the beach who had and were using cameras.

[53] It is worth restating that no by-law, signage or policy prohibited or even discouraged photography at Hanlan's Point. The beach was a public place regularly frequented by both nude and bathing-suited visitors. M.W. herself was photographing closely offshore vessels in the nude as the defendant photographed her.

[54] In all these circumstances, I am not persuaded to the requisite standard that the defendant could reasonably have anticipated – let alone knew – that his photography would "probably" interfere with M.W. or anyone else's enjoyment of their day at the beach, or that he was reckless or willfully blind in this regard. For these reasons as well, I cannot find the defendant guilty.

D. CONCLUSION

[55] The defendant is charged with voyeurism and mischief. For the reasons just recited, I find him not guilty of both counts.

Released on March 18, 2014

Justice Melvyn Green