Court Information

Court File No.: Toronto 4817 998 13-70002606 00

Date: August 13, 2015

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— and —

Wendell Craig Taylor

Judicial Officer and Counsel

Before: Justice Richard Blouin

Heard on: June 11 and June 12, 2015

Reasons for Judgment released on: August 13, 2015

Counsel:

• Mr. Neville Golwalla, for the Crown
• Mr. Stephen Whitzman, for the defendant Wendell Craig Taylor

Judgment

BLOUIN J.:

Introduction

[1] Wendell Craig Taylor stands charged that he committed three criminal offences against Ana Silva on June 23, 2013:

1. Voyeurism
2. Mischief
3. Criminal Harassment

The Crown called four witnesses: the complainant, her friend Melissa Selvaggi, DC Petrakis and PC Lukas. The defendant did not testify.

[2] The case involved images of women's buttocks captured on a public beach and proceeded as a blended trial and voir dire. The voir dire was necessary to determine whether "similar fact" evidence was admissible to show that the defendant (arrested in 2013) was the same person who police investigated in 2010. In addition to identity, the actus reus of the above-charged offences would be informed by the conduct in 2010.

[3] For the reasons that follow, I conclude that the person who filmed buttocks in 2010, is the same person arrested in June of 2013 – the defendant.

[4] In addition, I find that the Crown has failed to prove the essential element of "for a sexual purpose" and, accordingly, the Voyeurism charge is dismissed. I had difficulty with a number of the elements necessary to establish guilt on the Criminal Harassment count, so that count will also be dismissed. Finally, on the Mischief count, I am satisfied the Crown has proven its case beyond a reasonable doubt and there will be a finding of guilt.

Evidence

Ana Silva

[5] Ms. Silva went to a public beach on Toronto's waterfront (Woodbine Beach) on June 23, 2013, by herself, around 11 a.m., wearing a Brazilian thong bikini. She was lying on a towel reading a book, when she saw a man with a camera wrapped in a towel under his backpack about three metres away, with its lens pointed towards her. She recognized the man as the same man who did the same thing twice, a few years earlier. Although she did not know if her photograph was taken, she phoned police, and the man walked away. She identified the defendant in court, as that man.

[6] The camera was large and wrapped in a brown or a black towel. When asked why she called 911, she said she did not know what he would do with the photographs or videos, and that it was "disrespectful", and that she felt violated, invaded and frightened. She was frightened because she was alone and she felt that he might take exception to her calling the police. The defendant did not engage the complainant, but just walked away. Hours later, she saw the police with the same man (who turned out to be the defendant).

[7] Ms. Silva recognized the defendant from two earlier encounters in 2010, in the same area of the same beach. The first occasion was in May with her sister. She confronted the man, who denied taking pictures or possessing a camera, despite the complainant observing a camera under his backpack with the lens pointed in her direction. He told her he would leave if she felt uncomfortable. When she said she was, he left. Again, he was about three metres away with the camera wrapped in a black or a brown towel. She did not call the police.

[8] About two weeks after the above encounter, the complainant was at the same location, this time with a work colleague, Melissa Selvaggi. She had just related the above incident to Melissa when she saw the defendant doing the same thing he had done two weeks earlier. Melissa, and two men who were nearby, confronted the defendant. Again the camera was underneath the backpack, wrapped in a black or brown towel. The defendant laughed when confronted with being caught filming the complainant for a second time. He said: "Oh yeah, it's true, she caught me again". When the police were phoned, the defendant left without the camera. The camera was given to police when they arrived to investigate.

[9] Exhibit 1, a 30-minute video which depicted a number of people on Woodbine Beach, was taken from that camera. The main focus was on women's buttocks, with the camera lens zooming to around a three to four foot vantage point. Ms. Silva identified herself as one of the targets and made it clear that she would not have, if asked, given permission to the defendant to film her. She felt "violated" and "invaded". She was concerned about what the defendant might do with the videos. She did not want him to possess close-up images of her buttocks, much less post them on a web-site, or the Internet. There was no evidence that the defendant ever posted images electronically.

[10] In cross-examination, the complainant conceded that Woodbine Beach was a public beach and that on a busy day, anyone could walk close by and see her body or that of other young woman. She also agreed that people on the beach possessed smart phones with cameras, which could produce photographs or videos of anyone on the beach. She also agreed there were no signs prohibiting photography. She took offence to the taking of hidden pictures where the photographer "zoomed in on private areas".

[11] When questioned about her concern for her physical safety, given the absence of any aggression and the number of people on the beach, the complainant conceded she did not perceive immediate physical danger but was frightened that the defendant could react violently because she was alerting the authorities. It is clear the defendant never acted aggressively at any point.

[12] Ms. Silva also conceded that she did not recognize the man in Exhibit A (a photograph, or screen grab, of the person purported to be the videographer of the images in Exhibit 1) although she maintained that the same person responsible for all three incidents, was the person arrested by police on June 23.

Melissa Selvaggi

[13] Ms. Selvaggi was sunbathing with Ana Silva on May, 2010. Ms. Silva was recounting her interaction with the photographer on that same beach two weeks earlier when she says Ms. Silva recognized that person. Ms. Selvaggi pointed out the defendant as that person in court. She approached the defendant and asked him twice if he had a camera. The defendant denied it both times. Ms. Selvaggi could see the camera so she, and two men that were present, confronted the defendant who "swiftly" left the beach, leaving his camera behind. She or Ana gave that camera to the police.

[14] She observed the complainant to be distraught, upset and angry. She felt the videotaping without her consent was wrong on all levels, but felt most discomfort when the camera zoomed in on buttocks.

D.C. Michael Petrakis

[15] Petrakis responded to the complainant's 911 call with his partner PC Lukas. He received a description of the suspect from Ms. Silva, who was upset, her hands shaking. The defendant, who matched the description given, was arrested some distance down the beach. PC Lukas seized the camera and viewed the photographs captured therein. Mr. Taylor told the officer that he had never been arrested before, and that he did not know that what he did was illegal.

[16] At some point, after receiving advice from the police station, Mr. Taylor was released unconditionally with a warning that a report would be filed. The police returned his camera. Mr. Taylor then deleted all of the images.

P.C. Kelly Lukas

[17] PC Lukas investigated the second 2010 incident. She received a video camera from the complainant and Ms. Selvaggi (the video became Exhibit 1). Lukas also investigated the 2013 incident. She and Petrakis arrested the defendant on Woodbine Beach. A search of his backpack yielded a black Samsung video camera wrapped in a brown beach towel with a protruding lens. She performed a cursory search which revealed numerous photographs dated June 21 and 23. All photographs were close-up views of several female buttocks. She did not conduct a full examination of the camera to determine if any videos were captured.

[18] For reasons that remain a mystery, the defendant was shortly thereafter released unconditionally after Lukas consulted with superiors at the police station. The defendant had the camera returned to him. He offered to delete the photographs, and did just that. Lukas was not able to identify any of the women captured in the photographs since only buttocks were displayed.

[19] Later in the day, the police decided to continue the investigation. The defendant was arrested soon thereafter.

Findings

[20] Let me say at the outset that I accept in its entirety the evidence of the complainant and Ms. Selvaggi. They were both articulate and balanced. I found nothing incongruous about anything they said, and their emotions made sense in context. In fact, the whole of the Crown's evidence was compelling. This case turned on the application of those facts to the law.

Similar Fact Ruling

[21] In R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481, the Supreme Court of Canada outlined the rule at paragraph 55:

Similar fact evidence is . . . presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on the balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.

[22] As indicated earlier, I find the person responsible for two incidents in 2010 is the same person arrested in 2013 after that incident (the defendant). I took into account the following:

1. The complainant testified that it was the same person. This alone would not carry the day, especially given that it was in-court identification, and the description given of the suspect by the complainant in 2010 is somewhat generalized, but she had ample time to view the suspect on all three occasions.

2. Melissa Selvaggi testified that the defendant was the person who was caught filming women's buttocks (Exhibit 1) in May of 2010.

3. The method of operation is virtually identical in all three occurrences:

   • black male in his twenties;
   • using a video camera;
   • wrapped in a black or dark brown towel;
   • with the lens of the camera protruding;
   • underneath a dark backpack;
   • in the same general area;
   • on the same beach in Toronto;
   • close to women in bathing suits;
   • with a focus on women's buttocks;
   • filmed or photographed in close-up.

4. Although the complainant does not connect the defendant to the person depicted in the screen grab photograph from 2010, I am of the view that the defendant looks similar to the accidental depiction of the cameraman in 2010. Again, that alone amounts to little, especially since five years have passed. However, that similarity, in addition to the above-listed factors, assist me with my conclusion.

[23] In my view, the two Crown witnesses' identification evidence is supported by the striking similarity between the 2010 and 2013 incidents, and the probative value of the evidence significantly outweighs any prejudicial effect. Both identity and the actus reus are informed by the similar facts.

Voyeurism

[24] In R. v. Rudiger, 2011 BCSC 1397, the Supreme Court of British Columbia dealt with many of the same issues that I must decide in this case. The law is conveniently set out at paragraphs 74, and the essential elements the Crown must prove at 75:

[74] Voyeurism is a relatively new offence and has received little judicial consideration. In fact, the trial decision in this case may have been the first decision which addressed s. 162(1)(c) of the Criminal Code. Section 162(1)(c) provides:

(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

(c) the observation or recording is done for a sexual purpose.

[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 gives rise to a reasonable expectation of privacy; and, (iv) the recording is done for sexual purpose.

(i) Surreptitiously

[25] This was conceded.

(ii) Observes or makes a recording

[26] The information particularizes that the defendant photographed Ana Silva. I did not permit an amendment requested by the Crown at the closing of evidence which would have removed the reference to Ms. Silva, and replaced it with "women's buttocks". Given the defendant had prepared a defence, and conducted cross-examination of the witnesses based on alleged conduct regarding a particular person, I felt the amendment would prejudice the defence if it were made at that late juncture. Accordingly, I dismissed the amendment application.

[27] However, that being said, I conclude that the defendant did make a recording of Ms. Silva. In almost exactly the same set of circumstances (see paragraph 18 above) in 2010 the defendant made visual images of Ms. Silva's buttocks. He also made visual images of many other young women's buttocks. Constable Lukas, upon arrest in 2013, viewed the video camera seized from the defendant. This seizure was a short time after Ms. Silva observed the defendant with a camera pointed in her direction. Constable Lukas observed photographs of "multiple" buttocks. Even though Lukas could obviously not identify Ms. Silva's buttocks, given the defendant's hallmark modus operandi, I can come to no other conclusion than that one of the photographs that Lukas observed was of the buttocks of Ms. Silva. No other evidence suggested otherwise. At the very least, Mr. Taylor was in the act of photographing even if an image was not yet captured.

(iii) Of a person who is in circumstances that gives rise to a reasonable expectation of privacy

[28] While neither case was binding, two important decisions (Rudiger and R. v. Lebenfish, [2014] ONCJ 130) were referred to by both counsel. Both are well written and persuasive. And both prominently deal with the difficult delineation of the point at which one has a reasonable expectation of privacy. Justice Voith in Rudiger concluded that caregivers had a reasonable expectation of privacy involving images of their children playing in a public park; while Justice Green in Lebenfish found that nude sunbathers on a clothing-optional beach had no such reasonable expectation of privacy. Of course, the particular facts of each case played prominently on the respective views regarding expectation of privacy.

[29] In Lebenfish, the defendant did not surreptitiously photograph the nude women. He photographed them from a distance out in the open. The charge of Voyeurism failed on that issue alone. More importantly to my task, Lebenfish did not use a zoom feature to focus on "private areas" from a close vantage point.

[30] Similar to this case, Rudiger zoomed in on young girls' genital areas and buttocks. Paragraphs 107 and 110 outline the issue:

[107] The assertion that because the park was "public" no reasonable expectation of privacy can have existed is, for the reasons I have already expressed, too blunt a statement. . . . A caregiver who goes to a water park with her child fully understands that other children and caregivers will see her child either in a bathing suit or being changed. That caregiver understands that most such observations will be fleeting in nature. . . .

[110] Technology has the potential to dramatically change the reality of all such considerations and expectations. In this case the videotape dramatically magnifies and permanently captures the genital areas and buttocks of the young girls who were photographed. It is as though, as I have said, an individual was positioned but a few feet away from these children. Thus, each reasonable expectation is altered. Observations are not fleeting, they are extended in the sense that the video is more than 40 minutes long and permanent in the sense that a recording has been made. Observations are not muted, they are enhanced. Furthermore, the observer is not removed or distant but is, in real terms, immediately adjacent to the child being observed.

[31] Both Ms. Silva and Ms. Selvaggi testified that the objection taken to the defendant's behaviour was not just a recording of images of their private areas, but, because of the zoom feature, a close-up recording of their private areas. It was especially unsettling to have this done without their consent, and secretively.

[32] In my view, it is entirely reasonable to expect that, while wearing a bathing suit on a public beach, you will be seen, maybe ogled and possibly find your way into a photograph. It is equally reasonable to expect that close-ups of your private areas will not be captured as a permanent record for the photographer, and potentially millions of others on-line. I agree with the sentiment in Rudiger: Technology changes everything. While I find the calibration by Green J. in Lebenfish regarding the expectations of privacy in nude photographs on a nude beach to be one more difficult to assess, I conclude that Ms. Silva's (and Ms. Selvaggi's) expectation of privacy was, in fact, reasonable. The Crown has proven that essential element.

(iv) The observation or recording is done for a sexual purpose

[33] There was no evidence put forth in this trial regarding the purpose for the defendant photographing women's buttocks. Of course, unless the defendant testified as to his purpose, it would be difficult to know, and reliance must be made on the circumstantial evidence. Where one or more of the elements of the Crown case rest on circumstantial evidence, this standard requires that the only rational inference from the evidence shows guilt (R. v. Griffin 2009 SCC 28).

[34] In Rudiger, the circumstantial evidence pointing to a sexual purpose was quite compelling. When the police knocked on the window of the van he was videotaping from, he said to "hang-on, I've got to put my clothes on". The police officer saw a box of Kleenex, and a bag of wadded tissues between the seats of the van, and other wadded tissues on the floor below. On these facts, a sexual purpose is the only rational inference one could draw.

[35] In my view, while a conclusion that the defendant was photographing women's buttocks for a sexual purpose is the most likely, it is not the only rational conclusion. I cannot completely discount the possibility that he made these recordings for an aesthetic purpose. There are many artists (Robert Mapplethorpe, for example) that create nude images that are designed to be appreciated for reasons other than sexual gratification. In my view, consent to be photographed present in those cases but not here is not relevant to the purposes for which the photographs were taken or used.

[36] As a result, the Crown has not proved this essential element beyond a reasonable doubt. Accordingly, the defendant must be acquitted on the Voyeurism count.

Criminal Harassment

[37] Section 264 reads as follows:

(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

Prohibited conduct

(2) The conduct mentioned in subsection (1) consists of . . . (c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; . . .

[38] As indicated above, I have a number of difficulties with the Crown's case on this count.

[39] Firstly, I am not at all satisfied that the defendant's actions caused Ms. Silva to fear for her safety. Ms. Silva used a number of adjectives like "violated", "disrespected" and "invaded" to describe her feelings when she caught the defendant with his camera pointed towards her again in 2013. She described feeling frightened when she thought of what the defendant might do when she picked up her phone to call police. She was concerned he might do something because she was informing police and according to her, he saw her doing that. In fact, the defendant walked away. Exhibit 2, which was the audio recording of the complainant's 911 call to police, further informs on the issue of fear. The complainant is given the option of not following the defendant if she has safety concerns. She attempts to follow him. As well, her voice does not sound panicked or distraught.

[40] In addition, the similar fact finding made above assists the defendant in this regard. Not only did he leave when his actions were discovered on the occasion in 2013, but that is essentially what he did on both occasions in 2010. I cannot conclude that the defendant's actions caused the complainant to fear for her physical or psychological safety. Even if they did, that fear was not reasonable given the defendant's passivity.

[41] In my view, the Crown's case on Criminal Harassment fails on this alone. However, I have real concerns as to whether the defendant's actions can be characterised as "watching or besetting" as discussed in paragraph 43 of R. v. Eltom, 2010 ONSC 4001. It is not at all clear that he was "continually observing for a purpose". In fact, the complainant could not be certain as to the length of time the defendant was near her on the beach.

[42] Finally, while I find the complainant was harassed as outlined in R. v. Kordrostami, 2000 OJ 613 (she rightly felt troubled, tormented, badgered), I have difficulty concluding that the defendant knew or was reckless or willfully blind as to whether the complainant was harassed. There was no evidence that the defendant was aware that he was filming the same woman, given the number of women filmed in 2010 (Exhibit 1), and the number of women noted by DC Lukas in 2013. In addition, the time between this event in 2013 and the last event in 2010 suggests that he may not have known the connection.

Mischief

[43] Section 430.(1) reads as follows:

(1) Every one commits mischief who willfully

(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.

[44] In this case the information alleges that the defendant committed the offence by willfully interrupting and interfering with the lawful enjoyment of Woodbine Beach by photographing the complainant.

[45] I have already found the defendant photographed the complainant (or at the very least was engaged in the act of photographing) on June 23.

[46] In his reasons for a finding of not guilty of Mischief in Lebenfish, Green J. dealt with the issue of lawful enjoyment of a public beach in Toronto. Although not deciding the matter, he was not aware of a single case which dealt with mischief to public property, as opposed to a normal case of private property. In my view, there seems to be no policy reason to exclude the section's application to public property. As citizens, we all have the right to use and enjoy property that belongs to us individually. I see no reason why our collective right to use and enjoy public property should be looked at differently.

[47] A case that was mentioned in Lebenfish was R. v. King, 2006 ONCJ 537. This was a sentencing ruling of my colleague Justice S. Clark of the Ontario Court of Justice. The defendant entered a guilty plea to Mischief, which was accepted by the Court. The case involved surreptitious videotaping of a co-worker in a workplace shower area. While it was not public property, it wasn't the complainant's private property either. I find that case to be of some assistance in assessing whether the law could apply to situations other than private property. In addition, I am not aware of any cases which exclude public property from the Mischief provision involving interference with lawful enjoyment.

[48] Ms. Silva testified that she only went to the beach after the 2013 incident one time, with her boyfriend. She feels safe with him, but never would go to the beach alone, or even with friends. She explained, being from Brazil, the beach is her favourite place. I conclude that Ms. Silva's lawful enjoyment of public property was interfered with by the defendant's photographing her in the manner he did.

[49] I further conclude the defendant was very much aware that photographing, by zooming in on private areas was interfering with the lawful use and enjoyment of the beach by women. At the very least he was aware that this activity would probably cause distress and was reckless to its occurring (see s. 429 of the Criminal Code). Firstly, unlike in Lebenfish, he did it secretly. He covered his camera, I find, because he knew that women would be upset, and unlikely to continue their activities on the beach if they discovered him. Secondly, when he was discovered twice in 2010 by the complainant, she made him aware of her discomfort. When confronted, he denied responsibility then retreated (even leaving his video camera behind on the second occasion). So, at the very least, he had been made aware on two previous occasions that his actions caused interference with enjoyment of a public beach, and his words and actions showed that he knew that.

[50] Unlike Lebenfish, where Green J. concludes that the complainant had no reasonable expectation of privacy and, therefore, the Mischief charge, relying on a violation of those privacy interests, must fail. Obviously, having found there to be a reasonable expectation of privacy, Lebenfish is distinguished on yet another basis.

[51] In addition, no legal justification or exercise or colour of right existed. Accordingly I find the Crown has proven Mischief beyond a reasonable doubt, and a finding of guilt will be made on that count.

Released: August 13, 2015

Signed: "Justice Blouin"