Non-Publication and Non-Broadcast Order Notice

WARNING

The court hearing this matter directs that the following notice 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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 File and Parties

DATE: 2023 08 16 COURT FILE No.: Hamilton – 4711-998-22-2833-00

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— and —

K.R.

Before: Justice Richard Blouin

Trial heard on: July 18 and July 20, 2023 Reasons for Judgment released on: August 16, 2023

Counsel: Ms. C. Sweeny, counsel for the Crown Mr. D. Paquette, counsel for K.R.

BLOUIN J.:

Overview

[1] The defendant stands charged that he knowingly published an intimate image without consent, contrary to s. 162.1(1) of the Criminal Code.

[2] The complainant, G.I., testified for the Crown. The defendant testified and called two witnesses.

[3] The complainant was involved in an intimate relationship with a married couple. He moved into the residence of that couple, the defendant and his spouse, J., in the spring of 2020.

[4] In December of 2020, the “throuple” were in a hotel room in Niagara Falls. The defendant was angry and hurt by what he perceived as the complainant becoming much closer to J. He felt that both of them were pushing him out of the relationship. He left Niagara Falls and returned to Hamilton. G.I. woke up in the morning to discover 35 missed calls which included dozens from members of his patrol in his employment as a member of the Armed Forces.

[5] It became immediately apparent that the defendant had accessed G.I.’s Facebook account and posted a number of photographs and videos to two military Facebook groups that “outed” him as a gay man. Those images were primarily photographs of the three men together – often in bed, and videos and photographs of the complainant’s penis and buttocks (one of him masturbating into a sink).

[6] G.I. was quite understandably crestfallen. In the next few days he had to answer to his military superiors regarding the images. He was, soon thereafter, able to satisfy them that he did not post the images to Facebook. After a few days, the defendant apologized, and some attempt was made by all parties to repair the relationship. Those attempts failed, although G. and J. still continue to be in a relationship. The military eventually provided the complainant with an honourable discharge. In May of 2021, five months later, the complainant went to the police when he was unable to retrieve his dog from the defendant. The defendant admitted distributing the images to the two Facebook groups. He knew that G.I. did not consent to that distribution. He said, when he testified, that it was an awful thing to do.

G.I.

[7] All of the photographs and videos distributed to the two military chat groups, that would qualify as protected images (i.e., nude, genitalia or sex acts) pursuant to s. 162.1(2)(a), were taken by the complainant, some of them many years ago. The complainant admitted that he sent those images to other men that he hoped to interest in a sexual interaction on dating sites such as Grindr and Scruff. They were shared in an “album” which required permission from the sender to allow the viewer access. That access could be removed at any time. According to the complainant, the album cannot be screen shot, or shared.

[8] Given that the defendant admitted he distributed the images that exposed the complainant’s penis and anal region, and that he knew that he did not have consent to do so, the only issue that I must decide in this case is whether or not the complainant had a reasonable expectation of privacy in these images as outlined in s. 162.1(2)(b) and (c).

[9] The complainant also shared those explicit images with the defendant, and also provided a Facebook password to him. In cross-examination, the complainant agreed that he gave the defendant the means to distribute the images as he might see fit, even though he certainly did not want them to be distributed in the circumstances the defendant did.

[10] Again, in cross-examination, the complainant agreed that it was only in the last year that Grindr restricted screenshots of private albums. The complainant had shared those images with many others before the restrictions were instituted. He also agreed that more explicit images were downloaded onto a website, Pornhub, available to those who possessed an account, but only during two weeks in 2018 or 2019. Again, in cross-examination the complainant admitted he shared nude images with hundreds of men on the Scruff app over the years since he began experimenting with his sexuality.

The Law

[11] Distributing an intimate image without consent is an offence under s. 162.1 of the Criminal Code. The provision is set out below:

162.1(1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) of an offence punishable on summary conviction.

(2) In this section, intimate image means a visual recording of a person made by any means including a photographic, film or video recording,

(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;

(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and

(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.

[12] In R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, the Supreme Court of Canada dealt with the concept of a reasonable expectation of privacy in a voyeurism case. As no cases under s. 162.1 (distributing intimate images) were put before me, the broader privacy jurisprudence must be considered in interpreting reasonable expectation of privacy. The first of those principles involves a contextual assessment that takes into account all of the circumstances (para. 60).

[13] The second principle is that privacy is not an “all or nothing” concept. The fact that a person knows he will be observed by others, including strangers, does not in itself mean that he forfeits all reasonable expectation of privacy in relation to observation or visual recording (para. 61).

[14] Mr. Jarvis was a school teacher who surreptitiously recorded close-up images, with a pen camera, of the faces, upper bodies and breasts of female students who were not aware they were being recorded. Of course those female students would be aware they would be captured by video cameras in the school security setting, but would not know, and did not consent to, videos of close-up images of their breasts by a teacher. Context matters. In a similar case that I decided some years ago, involving the same charge of voyeurism pursuant to s. 162(1), a reasonable expectation of privacy did not attach to women in bathing suits on the beach, but I did find, and it was upheld on appeal, that those women would expect privacy in a situation where the defendant, Mr. Taylor, secreted a video camera in beach towels and zoomed in on numerous female bathers’ buttocks. Video images were captured which, as a result of the zoom feature, appeared to be from a distance of a few feet: R. v. Taylor, 2015 O.J. No. 4297. Again, context, and all surrounding circumstances, matters.

[15] The context in this case is very different from the voyeurism cases mentioned above. It was conceded that K.R. shared the nude images without the consent of the complainant. However, the definition of intimate image requires that there were circumstances that give rise to a reasonable expectation of privacy in those images, both at the time of the recording, and at the time the offence was committed.

Conclusion

[16] Here, G.I. was the one who made the recording of his penis, anal region, and himself masturbating into a sink. And he did so to allow those images to be sent to many individuals. He sent those images to Pornhub for two weeks. He sent them to K. and J. And, even in the case of his personal Grindr and Scruff accounts where he could control access, he had to have known that anyone could record those images and distribute them to whomever they wanted to. As both V.T. and K.M. demonstrated in the video evidence filmed by the defendant, even a few months before the trial those images were still available to both, and available to anyone who chose to record them.

[17] In my view the complainant did not have a reasonable expectation of privacy either at the time of the making, or at the time of the offences. This view is further supported by the case of R. v. Butters, 2015 ONCA 183. Mr. Butters brought his computer into a repair shop. Images of child pornography were noticed by the repair technician who called police. The police secured the computer without warrant. The trial judge found Charter violations but admitted the evidence. Paragraph 9 indicates:

[9] He found that the impact of the breaches on the appellant’s Charter protected interests, however, was modest. The expectation of privacy in the data on the computer was reduced as the computer had been taken to a repair shop and the appellant had provided the technicians with his Linux password. …

[18] In Butters, the defendant expected the data would be available to the repair technician, and no one else. Same in this case, except that the complainant made the data (the video files) available to hundreds of people, not one.

[19] It is like an individual attending a crowded nude beach with his partner. One might wish privacy, and one might wish only his partner to observe the nudity, but that would hardly be a reasonable expectation in the circumstances.

[20] Since I am of the view that the Crown’s case has not been proven on the privacy element, I need not spend much time with the evidence of the defendant. K.R.’s evidence, as to the relationship and the events of December 2020, differs little from the complainant. His evidence differs regarding the availability of the explicit images. K.R. contends that the complainant provided a link to the complainant’s Pornhub account with access to multiple explicit images “almost immediately” upon their meeting online. Anyone could sign up on Pornhub for a free account. He also contends that he, J., and G. shared one account on Scruff, and that they all shared each other’s explicit photographs with hundreds of other men. And he contended that Scruff allowed one to save pictures from a shared album until recently.

[21] Essentially, I accept the defendant’s evidence. It was bolstered by the evidence of both defence witnesses, V.T. and K.M. Both men had accessed the complainant’s Scruff account, and were given access to the albums of explicit photographs, and videos. In fact, V.T. still has them. He stored them on his phone, and could show them to anyone, as he did when he allowed the defendant to record them with his phone.

[22] In the final analysis, I find the complainant had no reasonable expectation of privacy as referenced by s. 162.1(2)(b) and (c), and the defendant shall be found not guilty.

Released: August 16, 2023 Signed: Justice R. Blouin