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 subsections 486.4(1) and (3) of the Criminal Code. These subsections 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) and 486.4(3), 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Date: January 10, 2025
Court File No.: London, Ontario
Information: 23-23106088
Between:
His Majesty the King
— and —
Abinash Samal
Before Justice J. Miller
Heard on August 29, November 5, and December 11, 2024
Reasons for Judgment released on January 10, 2025
Counsel:
L. Ducharme — counsel for the Crown
K. Toews — counsel for the accused Abinash Samal
Miller J.:
Introduction
[1] In R. v. Chow, the Ontario Court of Appeal began their decision about privacy in an Airbnb rental with these simple facts:
“A man rents an apartment from a stranger for a short-term visit to Toronto. The apartment will be his home for the duration of the visit: he will sleep there, eat meals, use the bathroom and perform any number of daily tasks there. He may meet with friends at the apartment. He may have sex there.
He will presume that the apartment is a safe place to stay -- that he will enjoy privacy while he stays there. However, he soon finds a hidden camera in the apartment. The camera is pointed at his bed.” [1]
[2] The Supreme Court of Canada in R. v. Downes, a seminal case discussing the offence of voyeurism, noted the offence was created expressly to combat concerns about how rapidly evolving technology was making it easy to invade privacy.
[3] The facts of this case, eerily similar to those in Chow, show how easy it was to combine the use of a rental service like Airbnb, and widely available and cheap technology, such as a small and unassuming spy camera, to commit an egregious invasion of privacy.
[4] Mr. Samal appears before the Court now for sentencing because between April 17, 2023, and July 16, 2023, he used a spy camera to record and observe persons to whom he rented a bedroom in his house through Airbnb. This included making surreptitious videos of a couple engaged in explicit sexual activity.
[5] Both parties recommend a period of incarceration for this offence to be followed by probation. Ms. Ducharme, for the Crown, recommends a 12-month jail sentence and is opposed to it being served conditionally in the community. Mr. Toews, on Mr. Samal’s behalf, suggests that I impose a 9-month jail sentence and states that it should be served conditionally in the community.
[6] In this case, I agree with the parties that a jail sentence is required to address proportionality, deterrence, and denunciation. I also agree that whatever the correct quantum of sentence is in this case, it is less than two years. Therefore, in crafting a tailored and appropriate sentence in this case, the real issues for me to determine are the quantum of the sentence and whether it ought to be served conditionally in the community.
The Sentencing Proceedings
[7] On August 29, 2024, Mr. Samal entered a guilty plea to the offence of voyeurism between the dates of April 17 and July 16, 2023, contrary to s.162(1)(a) of the Criminal Code of Canada. Facts were entered, a finding of guilt was made, and I heard sentencing submissions from the parties.
[8] The parties filed several exhibits in this matter:
i. agreed statement of facts with appendices; [3]
ii. victim impact statement; [4]
iii. surreptitious video recordings depicting an unknown couple engaged in sexual activity [5]; and
iv. risk assessment of Mr. Samal. [6]
[9] I asked the parties several questions about the nature of the device used to make the recording, and based on the answers I received, I asked about what, if any, inferences I could draw from the collective facts as to Mr. Samal’s purpose in making the recordings. I received helpful answers from both parties, for which I am grateful.
[10] I also queried the possibility of identifying the couple in the video recording to obtain victim impact from them, potentially forwarding the principles of restorative justice in this case. As of August 29, 2024, the police had been unable to identify them. The parties agreed to make good-faith efforts to do this. The matter was adjourned to November 5, 2024, to allow both parties an opportunity to do that.
[11] Before November 5, 2024, I received material from both parties advising that despite best efforts, neither could identify the victims in Exhibit #3. I accept that both parties made earnest attempts to do so and exhausted any avenue they had to obtain that information.
[12] At the time of the original sentencing submissions, neither party had identified another reported sentencing decision in Canada involving voyeurism committed by an Airbnb landlord against a renter of their premises. Before November 5, 2024, however, the decision of my colleague, the Honourable Justice M. Henschel, in R. v. Dowran [7] came to my attention. I sent this decision to both litigants and invited them to make submissions on it when we reconvened on November 5, 2024.
[13] On November 5, 2024, I heard additional submissions from the parties related to Dowran.
[14] The matter was put over to December 11, 2024, for me to deliver my decision; however, in my deliberations, I determined that I had further questions about Mr. Samal’s employment status and tried to arrange to meet with the parties before December 11th to make those inquiries. Given the short period, a date could not be arranged before December 11th, so I made my inquiries on the 11th and received the answers I required from Mr. Samal through his counsel.
The Facts
[15] Based on the agreed statement of facts, the other exhibits, and counsel submissions, I make the following findings of fact.
[16] Sometime in the first two months of 2023, Mr. Samal began renting out two bedrooms of his single-family house in London, Ontario, over the popular rental site Airbnb.
[17] While no specific evidence was called on Airbnb, it is ubiquitous and well-known. Airbnb is a popular online marketplace for short-term and long-term rentals. It operates in many countries around the world, including Canada. Airbnb acts as a middle manager, protecting landlords and renters. According to its website, renters and landlords must validate their identity before participating in the marketplace. It also provides insurance coverage for landlords for the rental properties for both damage and liability. It further protects renters by collecting the fees directly and resolving disputes with landlords. Airbnb collects a percentage of the rental cost for this service from the renter's fee.
[18] On April 17, 2023, Mr. Samal purchased a spy camera from Amazon, another well-known online marketplace that sells, amongst other things, electronics. This camera is made to look like a standard charger block, such as for a cell phone, and it plugs into a standard household outlet. This powers the device and lends to its disguise as a charger block.
[19] This camera can only record video locally to a micro-SD memory card inserted physically into the device. A micro-SD card is a very small memory card used in small electronics such as compact cameras and cell phones to record digital data such as, in this case, videos.
[20] Based on the material in Exhibit #1A and 1B and counsel’s answers to my inquiries, I am satisfied [8] there is no other way to record videos with this camera.
[21] Further, I am satisfied that the only way video files recorded with this camera can end up on a different digital device, such as a cell phone or a computer, is if the user intentionally transferred them there. This would require that they remove the micro-SD card from the spy camera and insert it into a device capable of reading it that is connected to the destination digital device. The user would then have to take steps to copy those files over to the destination digital device. That is obvious based on how the spy camera and the cell phone application used with it operate. Indeed, Mr. Toews reasonably conceded this.
[22] This is also supported by the fact that the video clips, in this case, are only of activity of an explicit sexual nature between the unknown victims. If there were no intent about transferring the videos or only capturing the sexual encounter, one would expect the camera to have captured what everyone reasonably agreed would include at least some benign and non-intimate activity while the parties were in the bedroom.
[23] The camera can also be live monitored by accessing it over a Wi-Fi network using an application called HomeEye. This is a cell phone-based application.
[24] Mr. Samal took delivery of this camera on April 18, 2023.
[25] During the time of April 18, 2023 and July 16, 2023 Mr. Samal used this spy camera surreptitiously to visually record and observe persons he rented his bedroom to through Airbnb.
[26] The camera was placed where it basically only captured the bedroom's bed area. There were other plugs and ways to situate the camera where the bed area would not have been captured.
[27] On or about June 18, 2023, renters of Mr. Samal’s Airbnb bedroom were recorded by him in the rented suite, using this spy camera, while they engaged in explicit sexual activity, including sexual intercourse, as depicted in Exhibit #3. The victims, a man and woman whose identities are unknown, appear to be adults.
[28] Subsequently, J.F. [9] and C.L. [10] reserved this same bedroom at Mr. Samal’s house through Airbnb for the Rock the Park show on July 15, 2023.
[29] After the show, J.F. and C.L. attended Mr. Samal’s residence on the evening of July 15, 2023, and checked into their bedroom rental. C.L. changed before going to sleep, and she was naked in the bedroom while changing.
[30] On July 16, 2023, at around 9:00 a.m. J.F. and C.L., packed up, checked out of the Airbnb, and left for home.
[31] J.F. mistook the spy camera for a phone charger he believed belonged to C.L. and packed it up with their belongings. I note, were it not for this innocent mistake, Mr. Samal’s offending behaviour would have gone undetected, and I am satisfied it would have continued.
[32] At 9:19 a.m., Mr. Samal began leaving text and phone messages for the couple, telling them they had taken the charging block. Mr. Samal lied and told them it was a charger that belonged to a different guest and that the guest was threatening to charge him for it if it wasn’t returned. J.F. contacted Mr. Samal to apologize and advise him that he would mail the charger back to him as soon as possible.
[33] Over the next few days, Mr. Samal sent numerous texts and phone messages demanding the return of the charger and threatening to charge C.L. and J.F.’s Airbnb account $70 if it was not immediately returned.
[34] The urgency with which Mr. Samal demanded the return of the charger became suspicious to C.L., and J.F. C.L.’s son examined the charger with a flashlight, at which time he discovered that it contained a hidden camera. Police were contacted, and the camera was turned over to them. I note that no micro-SD card was in the device.
[35] Several days later, police in London executed a search warrant at Mr. Samal’s residence. They seized a cell phone and a laptop belonging to him and analyzed them pursuant to a warrant.
[36] On the laptop, police located the two videos that are now Exhibit #3 in this matter; however, they were in the recycle bin on the computer. I am aware that to place items into a recycle bin the user must have had the files accessible on storage media attached to the computer, such as the hard drive, and chosen to delete them.
[37] These videos were also discovered as accessible and active files on Mr. Samal’s cell phone. The creation date of both videos was June 18, 2023. The videos total just under 12 minutes in length together.
[38] During the search, police confirmed that Mr. Samal’s residence had an active home Wi-Fi network, that the spy camera was connected, and that Mr. Samal’s phone was used to access the camera.
[39] Police also located an application called HomeEye on the cell phone, which operates the spy camera. Contrary to Mr. Samal’s contention that he deleted it sometime after the June 18th videos were created, the data on the phone showed that it was installed on April 18, 2023, and had never been uninstalled.
[40] During the search, police also located the invoice for the spy camera, confirming it cost close to $70, the amount that he purported to charge C.L and J.F.
[41] Based on the evidence, I am satisfied that Mr. Samal intended to capture surreptitious videos of a sexual nature. Further, I am satisfied that Mr. Samal purposely placed these files on his cell phone for his own prurient use.
[42] I make these findings based on how the camera and its application operate, the specific placement of the camera, and the length and nature of the videos in Exhibit #3. There is simply no other reasonably possible explanation for this evidence.
[43] I specifically reject Mr. Samal’s minimization that he was trying to protect himself based on a prior poor experience with Airbnb guests. I also reject his position that after realizing he had captured such intimate activity, he took steps to ensure he was no longer in possession of it.
[44] First, there was nothing to suggest this prior experience involved the bed in the bedroom. It would not explain why the camera was pointed right at the bed and essentially only captured that part of the room.
[45] Second, to obtain that video, Mr. Samal had to purposely place a micro-SD card into the camera, as that was the only way for that camera to record the video.
[46] Third, Mr. Samal would have had to take positive and purposeful action to place the videos on his cell phone.
[47] Fourth, and most importantly the video only captures explicit intimate activity, and there are two of them made on the same day. This means someone either live monitored the camera and started and ceased the recording at specific points to only capture this precise activity, or someone took a more extended video clip and edited it only to have video of the explicit sexual activity.
[48] It is simply not believable that the camera just happened to capture only explicit sexual activity on its own. No evidence suggests the camera is motion-activated or can record without positive user intervention.
The Background of Mr. Samal
[49] Mr. Samal is now 43 years of age, and he has no prior criminal record. Based on what his counsel advised me, he still lives in the same residence where he committed this offence, in London, Ontario. He resides with his wife of nearly 14 years and his daughter, who was 9 when I first heard submissions on this matter.
[50] Mr. Samal came to Canada in 2015 from India and is now a Canadian citizen. It was not suggested that any sentence I impose could impact his immigration status.
[51] In the initial submissions I received on this matter, counsel advised me that Mr. Samal had been working fulltime as a Vice President at Citi Bank since 2021.
[52] Further, I was advised that Mr. Samal also does home renovation work between 5 p.m. and 9 p.m. on weekdays and 9 a.m. to 5 p.m. on weekends.
[53] On December 11th, when I made further inquiries about Mr. Samal’s working schedule, I learned that he worked Monday to Friday from 8 a.m. to 5 p.m. for Citi Bank. Further, I learned that he works from home 3 days a week and must attend Citi Bank in Mississauga 2 days a week.
[54] I also learned that Mr. Samal is self-employed and does not have a supervisor for the home renovation work.
[55] Finally, in response to my inquiries, I learned that Mr. Samal has not advised his employer of his charge or conviction, and it appears they are unaware of it.
[56] I expressed concern that he was requesting a conditional sentence, with at least some of its grounding in the fact that he could continue working and supporting his family; yet, he had taken no steps to confirm he would keep his job if he received such a sentence.
[57] I further expressed that based on what I knew about Canada's highly regulated banking industry and common sense, I would be surprised if Mr. Samal’s employment terms did not require him to report this information. I also expressed doubt that his employer would be supportive.
[58] However, in fairness to Mr. Samal, I offered to give him the opportunity to advise his employer of his legal predicament and provide me proof that they were supportive of his continued employment. I was advised Mr. Samal is not prepared to advise his employer of his current legal issues.
[59] Mr Samal has, because of his bail conditions, stopped running an Airbnb. However, he has rented one of his bedrooms to a long-term tenant. It is not clear to me whether this tenant is aware of Mr. Samal’s charges.
[60] Mr. Samal met with a social worker, Randy Scott, four times in July 2024, to conduct a risk assessment. That assessment is Exhibit #4. Mr. Scott is a clinical social worker with some 30 years of experience counselling individuals who come into conflict with the law, many of whom have committed a sexual offence.
[61] Mr. Scott indicates that when he met with Mr. Samal, he knew he had been charged with voyeurism. The information he had was similar to the facts I detailed above. However, he was told that images of an intimate nature were found, as opposed to video, on Mr. Samal’s device. It is not clear that anything turns on this per se.
[62] Mr. Scott was told by Mr. Samal that he had placed the camera in the room “for security reasons, following a bad experience with unsavory guests”. Indeed, Mr. Scott used that version of events to score Mr. Samal on one of the risk instruments, the Stable-2007.
[63] Further, Mr. Samal advised Mr. Scott that he had no voyeuristic tendencies. Mr. Samal also told Mr. Scott that once he found the images on his computer he deleted them. There is no indication that Mr. Scott was made aware that active and accessible versions of the videos were located on Mr. Samal’s phone.
[64] Further, Mr. Samal appears to have left Mr. Scott with the impression that upon learning he had captured intimate images, he took steps to divest himself of the tools to do so in the future, such as deleting the images and cancelling a subscription. There is nothing in the report to suggest that Mr. Scott was made aware of Mr. Samal’s urgent efforts to regain his spy camera or that, contrary to his position that he deleted the application that allows one to operate it, that application was still on his phone when it was seized by police.
[65] Mr. Scott notes in the report that “while conducting the risk assessment, an area of concern was Mr. Samal’s apparent lack of insight into the variables that led to his offence”. He also notes “research pertaining to risk factors for recidivism with sexual offenses has demonstrated that whether the client accepts responsibility for the offense (or not) is not a good predictor of risk (Karl Hanson, 2001)”.
[66] Mr. Scott used two well-known risk instruments to score Mr. Samal’s risk, the Static-99R and the Stable-2007. This Court is very familiar with both instruments. Before December 11th, I provided counsel with two authoritative articles that provided details of how these instruments are scored. I also went over my understanding of them. Counsel agreed that I could use such knowledge in this matter.
[67] The Static-99R is the most widely used risk assessment instrument in the world to predict the risk of sexual reoffending. Scores on this instrument range from a low of -3 to a high of 10. Depending on the score, the person is then placed into one of five elevating risk categories that rate their risk of reoffending relative to other offenders who commit sexual offences:
i. Level I: Very low risk, scores of -3 to -2
ii. Level II: Below average risk, scores of -1 to 0
iii. Level III: Average risk, scores of 1 to 3
iv. Level IVa: Above average risk, scores of 4 to 5
v. Level IVb: Well above average risk, scores of 6+
[68] Mr. Samal scored a 3 on this instrument, placing him at Level III, corresponding to an average reoffending risk compared to other sex offenders. He received a score of minus one for his age and scores of 1 for each of the following: non-contact sexual offence, unrelated victim, stranger victim, and a male victim.
[69] Mr. Scott appeared to have used this instrument's old classification system for risk and reported that it showed Mr. Samal to be at a low-moderate risk. The risk score of 3 would have correlated to this classification before the instrument was updated in 2016.
[70] Mr. Toews advised that he spoke to Mr. Scott about this after receiving the Court’s materials showing the risk scale change in 2016. Mr. Scott advised that what he was referencing was not the risk category on the Static-99R, but rather an adjusted risk level applying the score of the Stable-2007 and clinical judgment.
[71] I noted that I was aware that when determining ultimate risk, it is indeed accepted in the field of risk assessment that the assessor can consider multiple instrument scores and clinical judgment; however, even Mr. Toews conceded that the report is not worded that way.
[72] Indeed, if this is what happened, Mr. Scott omitted the risk classification for the Static-99R in the report, even though he provided one for the Stable-2007. Additionally, the impugned wording was mentioned in the Static-99R portion of the report, not the ultimate conclusions. The conclusion part of the report notes Mr. Samal to be a “relatively low” risk to re-offend, not a “low-moderate” risk, contrary to Mr. Scott’s position that the “low-moderate” classification expressed his overall view of Mr. Samal’s risk. Further, this amalgamated risk categorization would then just coincidentally have been worded in the same terms as that which would have been used under the old Static-99 scores, where a score of 3 corresponded to a “low-moderate” risk.
[73] I would be concerned if Mr. Scott did report a very dated risk classification in a manner that appears beneficial to a client. Candidly, I am more concerned at this point that Mr. Scott made an error and refuses to acknowledge he did in the face of overwhelming evidence.
[74] His explanation of why he used this wording where he did does not make sense to me. It is clear to me that when he used the term “low-moderate” he was expressing what the score on the Static-99R alone corresponded to, which is why he stated it thusly: “A score of 3 on the Static 99R places him in the low-moderate risk range”.
[75] All of that said, when I examine the Stable-2007 and the issues I have with the scoring of it, it will become clear not much turns on this. Even accepting Mr. Scott at his word, I don’t find his amalgamated risk of “relatively low” or “low-moderate”, whichever it is, to be reliable.
[76] The Stable-2007 assessment scores the accused for the presence or lack thereof of 12 stable risk factors [11]. The score for each factor is either a zero, indicating it is not present, a one if it is somewhat present, or a two if it is clearly present, with a maximum score of 24 [12]. That score corresponds to one of three risk ranges: low, moderate and high.
[77] The standard stable risk factors scored in this case would be:
i. Significant negative social influences;
ii. Lack of capacity for relationship stability;
iii. Hostility towards women;
iv. General social rejection;
v. Lack of concern for others;
vi. Impulsiveness;
vii. Poor problem-solving skills;
viii. Negative emotionality;
ix. Sexual preoccupation;
x. Sex as coping;
xi. Deviant sexual preference;
xii. Lack of co-operation with supervision;
[78] Using this instrument, Mr. Scott scored Mr. Samal a total of 2 for the clear presence of poor problem-solving skills. He noted in his report that:
“The only marks were a 2 for problem solving. The two in this area was due to evidence of poor problem solving at several points in Mr. Samal’s actions leading up to the charges. First, he made a poor choice to run an Airbnb within his home with a young daughter. This meant having strangers appear at his house at late hours and giving them access to the entire house by the nature of the physical set up. Second, he bought and used “hidden cameras” to have better surveillance of his guests leading to the illegal voyeuristic incidents.”
[79] A score of 2 on the Stable-2007 would correspond with Mr. Samal being a low risk to re-offend based on stable risk factors.
[80] Besides some file information about this charge, Mr. Scott relied entirely on his interviews with Mr. Samal to score this instrument. Of the two instruments – the risk factors in the Static-99R are more objective and could essentially be determined from a review of the file information on this case. The Stable-2007 assessment, however, would involve factors that rely on a much more detailed history from Mr. Samal involving his relationships and sexual preferences. As pointed out by Ms. Ducharme for the Crown, the material I provided on how to score this instrument discourages scoring based largely on self-reporting. The reasons for this are obvious. I also note for reasons I give in this judgment, I do not find Mr. Samal to be a particularly reliable source of information.
[81] I am also concerned about the lack of scores indicating any presence of at least some of the stable risk factors for Mr. Samal. Impulsivity was scored a zero. However, Mr. Scott notes at the conclusion of his report that Mr. Samal may benefit from counselling for impulse control. It appears clear to me on the evidence that Mr. Samal has impulse control issues.
[82] Further, sexual deviancy was scored a zero. However, I have accepted that Mr. Samal purposely made surreptitious videos of another couple in his home for his own prurient use. Mr. Scott himself notes the following about Mr. Samal, “despite actions to the contrary, he claims to have no voyeuristic tendencies.” Mr. Scott also suggests further counselling to address this in his report. Scoring this factor a zero is incongruous with my findings and Mr. Scott’s own observations.
[83] Areas such as lack of concern for others may also warrant re-examination, but I need not delve any deeper into this topic.
[84] Given my findings about Mr. Samal’s minimization and my rejection of his position, which he provided to Mr. Scott and was used to score him on the Stable-2007, I have issues accepting the results of the Stable-2007 as being reliable. In my view, the Static-99R, the most used instrument in any event for sexual offending, is more reliable in its result. This would mean that based on that reliable risk assessment Mr. Samal represents as an average risk to reoffend as compared to other sexual offenders.
[85] Mr. Scott notes spending some time with Mr. Samal, working on his insight into his risk factors and helping him complete a relapse prevention plan utilizing the Good Life offender treatment model.
[86] However, that relapse plan appears to have been premised on Mr. Samal’s version of events, which I have rejected about how he came to have the voyeuristic material and his intended use of it.
The Victim Impact
[87] C.L. and J.F. provided a victim impact statement in this matter pursuant to ss.722(1) Criminal Code. It was read into the record by crown counsel.
[88] The defence took no issue to this evidence. However, during submissions, the defence did state that the evidence failed to establish that Mr. Samal recorded or observed J.F. or C.L. during their stay.
[89] There is evidence that causes me to believe that it is reasonably possible that Mr. Samal surreptitiously observed J.F. or C.L. during their stay. The camera was seemingly operational for surreptitious viewing and still plugged into the wall and pointed at the bed during their stay. The HomeEye application was on Mr. Samal’s phone, which I infer was in his possession. Given the lack of a micro-SD card in the camera, when it was unexpectedly taken, it does not appear recording was a possibility. Indeed, no videos of J.F. or C.L. were ever discovered on Mr. Samal’s devices. I am left with evidence of motive and opportunity to observe, but it lacks the clear and convincing nature to say it occurred beyond a reasonable doubt.
[90] As J.F. and C.L. would not constitute “victims” in the most traditional sense of that term, being people against whom the Crown proved the accused directly committed a criminal offence against, I feel it necessary to briefly comment on whether they are nevertheless victims of Mr. Samal at law. I conclude they are.
[91] Victim is defined broadly in s.2 of the Criminal Code and it includes: “a person against whom an offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of the offence and includes, for the purposes of sections 672.5, 722 and 745.63, a person who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person.” [emphasis added]
[92] In this case, J.F. and C.L. are persons against whom an offence was alleged to have been committed. Further, they have clearly suffered psychological harm because of the commission of Mr. Samal’s offence, even if he committed that offence against other persons, for instance, the unknown couple in the videos in Exhibit #3.
[93] C.L. wrote the victim impact statement, which speaks for herself and J.F. In it, she describes the understandable psychological harm that was occasioned when she and J.F. discovered that they paid money to Mr. Samal for a private room, only to be tricked into staying in a room Mr. Samal had set up to surreptitiously observe and record people without their knowledge. They have lost trust in people and have been unable to travel since this event occurred due to that loss of trust. She talks about the many “what if” questions she has, for which she will not get answers.
[94] I note that although efforts were made, the other victims in this matter were never identified. I infer that they have never learned of Mr. Samal’s deceit. However, it may very well be that the couple depicted in Exhibit #3 will come to learn of this matter in the future.
[95] This matter has attracted some modest publicity, given the nature of the offence and the involvement of Airbnb. Should they learn of this case in the future, I infer they, like any other citizen who paid for private lodgings only to have their most intimate moments surreptitiously videotaped and stored by the offender, would suffer foreseeable and significant psychological harm. Indeed, reasonable people who read about this case, and cases like it, will lose at least some confidence in using services like Airbnb or hotels, as C.L. and J.F. have.
The Law
[96] Criminal sentences imposed by courts in Canada aim to protect society and contribute to respect for the law and the maintenance of a just, peaceful, and safe society. [13]
[97] Section 718.1 of the Criminal Code sets out the fundamental principle of sentencing, which is proportionality. It instructs me that the sentence I impose must be proportional to the gravity of the offences and the degree of responsibility of the sentenced individual.
[98] This is a highly individualized process, requiring a judge to reconcile principles that often, although not always, pull in opposite directions. The Criminal Code and the common law contain legal principles that help guide the judge.
[99] Sections 718(a) through s.718(f) of the Criminal Code assist by defining the sentencing objectives. They include:
i. denunciation;
ii. general and specific deterrence;
iii. separating offenders from society, when necessary;
iv. rehabilitation;
v. making reparation to victims of crime; and
vi. promoting a sense of responsibility in offenders and acknowledging the harm they have caused the community, as well as specific victims in our community.
[100] Section 718.2(a) instructs the Court to adjust sentences to account for aggravating and mitigating factors. S.718.2(a)(i)-(vii) goes on to delineate specific statutory aggravating factors. Of note, these are not exhaustive but are specific examples of aggravating factors that Parliament mandates the Court to consider in sentencing.
[101] In this case, the Crown seeks to rely on two of those enumerated factors. First, s.718.2(a)(iii) states that it is aggravating if the accused abused a position of trust or authority in relation to the victim. Second, s. 718.2(a)(iii.1) states that it is aggravating if the offence significantly impacts the victim, considering their age and other personal circumstances, including their health and financial situation.
[102] A breach of trust includes cases where the victim reasonably believes they can trust the accused, and the accused violates that trust in committing the offence. [14]
[103] Mitigating factors may include collateral consequences. Collateral consequences do not operate to diminish the offender's moral blameworthiness or render the offence less serious, but they speak to the fact that a particular sentence may have a more significant impact on the offender because of their circumstances. [15]
[104] The parity principle, codified by s.718.2(b), also guides the Court. Paraphrasing, the principle states that the Court should strive to impose like sentences on like offenders who commit like offences in like circumstances. In practice, there are seldom like offenders who commit like offences in like circumstances. Parity, therefore, often provides only a rough guide rather than clear lines.
[105] The principle of restraint must also guide the Court as codified in ss.718.2(d) and 718.2(e) of the Criminal Code. S.718.2(d) requires that I not deprive Mr. Samal of his liberty if less restrictive sanctions may be appropriate. Section 718.2(e) requires that I consider all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or the community. Both counsel have submitted that in these circumstances, there is no sentence other than a sentence of incarceration that is reasonable, and as stated I agree.
[106] When imprisonment is imposed, the common law contains an additional principle of restraint to consider when sentencing a first-time offender. The law states that such a sentence should be the shortest one that can still achieve the required sentencing goal of proportionality. This principle of restraint, however, applies with less weight when the crimes are particularly serious or violent or the offender is not youthful.
[107] The availability and imposition of a conditional sentence of imprisonment for periods of incarceration is governed by s.742.1 of the Criminal Code. A conditional sentence of imprisonment may be ordered where:
i. the court imposes a jail sentence of less than 2 years;
ii. the offence is not punishable by a minimum term of imprisonment, nor is it one of the following offences: attempted murder [16]; torture; advocating genocide; or a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more.
iii. the court is satisfied that the accused would not endanger public safety if permitted to serve his sentence of imprisonment in the community; and
iv. the court is satisfied that serving the sentence of imprisonment in the community would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. [17]
[108] Decades later, the Supreme Court of Canada’s decision in R. v. Proulx remains a critical guiding authority when considering a conditional sentence. The key principles I distill from Proulx are as follows:
i. a conditional sentence is available in principle for all offences, including offences of violence, in which the statutory prerequisites are satisfied; [18]
ii. just because a sentence is less than two years, and the judge otherwise finds that serving a conditional sentence in the community would not endanger community safety, does not give rise to any presumption that a conditional sentence will follow; [19]
iii. however, a judge must give serious consideration to a conditional sentence whenever the first three criteria are satisfied; [20]
iv. a sentencing judge enjoys broad discretion to determine whether a conditional sentence of imprisonment is a proportionate sentence, consistent with the seriousness of the offence, and the degree of moral culpability of the offender; [21]
v. the principle of restraint codified in ss.718.2(d) and (e) applies when determining whether a conditional sentence or a period of actual jail should be imposed; [22]
vi. a conditional sentence can better achieve restorative objectives while still being punitive, where both objectives can be achieved in the same case; a conditional sentence is often the more attractive sentence; [23]
vii. where there is little opportunity for restorative objectives and/or punitive objectives are particularly pressing, a sentence of imprisonment will generally be more attractive. However, even where no restorative objective is possible, a conditional sentence will still be preferable if it can achieve the goals of deterrence and denunciation as effectively as actual imprisonment in the specific case; [24]
viii. denunciation is generally better achieved through sentences of actual jail. However, a conditional sentence can provide significant denunciation depending on the offender's circumstances, the nature of the conditions imposed and the community where the sentence will be served; [25]
ix. actual incarceration may provide more deterrence than a conditional sentence; however, the lack of empirical evidence supporting this requires caution; [26]
x. a conditional sentence can provide significant deterrence depending again on the offender's circumstances, the nature of the conditions imposed and the community where the sentence will be served; [27]
xi. there are circumstances where the need for denunciation and/or deterrence makes actual incarceration the only reasonable option. [28]
[109] The proper analytical approach to determining whether to impose a conditional sentence requires the Court to:
i. first, consider whether a sentence of less than two years, inclusive of deductions for pre-trial custody, is appropriate; and
ii. second, determine whether the court is satisfied that serving a sentence in the community would not endanger the community and whether the sentence is consistent with the fundamental purpose and principles of sentencing. [29]
[110] Finally, given the facts underlying the offences in question, I need to consider legal principles attributable to society’s views on violations of a person’s sexual autonomy and integrity and violations of privacy. The Court’s decision must reflect contemporary Canadian values and standards. The Court plays a key role in maintaining these standards and upholding the rule of law. Failure to do so would bring the administration of justice into disrepute and cause the public to lose confidence in our system of justice. Without the public’s confidence, no system of justice can operate effectively. [30]
[111] Over the last several years, Canadian jurisprudence has shifted on matters involving criminal violations of sexual autonomy and integrity to reflect better the contemporary understanding of Canadian Society respecting the harm caused by such offences. [31] Indeed, Courts have come to accept that much of the older law in this area was based on myths, stereotypes, and, regrettably, misogyny.
[112] While this case does not involve child victims or any of the hands-on offences dealt with in the cases cited above, some of the legal principles elucidated in these cases have relevance here.
[113] First, Canadians place a very high degree of value on their sexual autonomy, integrity, and privacy.
[114] In Downes, the Supreme Court of Canada clarified that the creation of the offence of voyeurism “was motivated by concerns about the potential for rapidly evolving technology to be abused for the secret viewing or recording of individuals for sexual purposes and in ways that involve a serious breach of privacy.” [32]
[115] Therefore, the offence of voyeurism aims to protect society against two notable and serious harms: invasions of privacy and violations of sexual integrity and autonomy. [33]
[116] Those harms were summarized as follows: “[a]n observation or recording in such a quintessentially private and ‘safe place’ violates trust and can result in the person’s humiliation, objectification, exploitation, shame, or loss of self-esteem.” [34] [emphasis added]
[117] Second, finding an offence is serious when it violates a victim’s sexual integrity is not reserved for cases where there is some minimum degree of required physical intrusion upon the victim’s bodily integrity. Indeed, Courts are now repeatedly recognizing that the serious psychological harm that may be occasioned by offences that violate sexual integrity is often as serious, or more so, than the bodily harm suffered in a smaller fraction of these cases. Physical wounds often heal quicker and with less disruption to a victim’s life than the psychological harm that is occasioned. While more significant intrusion on bodily integrity remains an aggravating factor, lower degrees do not mitigate offences of this nature. [35]
[118] Sentences imposed for such matters must recognize and be proportionate to the degree of harm occasioned to the victims, including the psychological harm suffered by them. Put simply, the sentences imposed by the Court must reflect the actual, and at times imputed, harm caused to the victims of these offences. [36]
Application of the Law to the Facts
[119] I begin by considering the mitigating and aggravating factors in this case. The mitigating factors are as follows:
i. Mr. Samal entered guilty pleas and apologized to the Court. Granted, Mr. Samal has attempted to significantly minimize his offending behaviour, which I have rejected as deceitful. Further, he appears primarily concerned only with his actions' consequences for himself. Still, his guilty plea saved significant court resources and spared witnesses from having to testify. Given the Court backlog, I would still give meaningful weight to his guilty plea. His guilty plea is his most significant mitigating factor.
ii. Mr. Samal has no prior record and appears to be of previous good character.
iii. Certain collateral consequences arise depending on the sentence imposed, which I will discuss as they become relevant.
[120] I have found the following aggravating factors apply to the offence:
i. Mr. Samal’s offence gave rise to multiple victims.
ii. Mr. Samal recorded video as opposed to observing or still photos, which creates a more detailed and complete record of the private activity.
iii. Mr. Samal’s offence was a serious and purposeful violation of the privacy, along with the sexual autonomy and integrity of the victims.
iv. The videotaping occurred in a bedroom with the camera pointed at the bed, a place that attracts an extremely high degree of privacy.
v. The videotaping captured intimate sexual activity including sexual intercourse, which attracts the highest expectation of privacy in Canadian society.
vi. Mr. Samal violated a position of trust.
vii. Mr. Samal defrauded the victims in that they paid him for privacy, and he intentionally violated that privacy.
viii. Mr. Samal’s offending was planned and premeditated.
ix. Mr. Samal’s offence caused serious psychological harm to the victims C.L. and J.F.
x. Mr. Samal retained the videos of the unknown victims on his personal electronic device for his future prurient use.
[121] I have considered parity in this case. Both parties provided me with other voyeurism cases for my consideration. I thank both counsel for their assistance.
[122] Both parties argue that the other’s authorities are distinguishable. As is typical, both are correct. As stated in this judgment, rarely do like offenders commit like offences in like circumstances.
[123] The cases provided help paint a picture of a sentencing range far from settled in my opinion. Prior to the Supreme Court’s decision in Jarvis, the range for a first-time offender in Ontario was thought to be between a suspended sentence and 9 months jail. The case law from Ontario, especially following the Supreme Court’s momentous decision in R. v. Jarvis, seems to paint a picture of an upward trend in this Province. [37]
[124] Mr. Toews, for Mr. Samal, placed great reliance on the Alberta Court of Appeal decision in R. v. Germain [38]. In that case, a 15-month conditional sentence was imposed on an offender who videotaped some 117 victims using the washroom, two of whom were underaged. Mr. Germain was employed by a HVAC company and he placed the cameras in washrooms of various buildings he gained entry into through his employment. The Crown appealed, and the Alberta Court of Appeal dismissed that appeal and upheld the sentence. The Court of Appeal’s decision largely focussed on whether the judge committed an error in principle or whether the sentence was manifestly unfit. Their decision to uphold the sentence is essentially a testament to the broad discretion sentencing judges have. Of note, the Alberta Court of Appeal did not suggest this was the sentence they would have imposed.
[125] The Alberta Court of Appeal stated that as Parliament had not chosen to legislate the primary sentencing principles for the offence of voyeurism to be primarily deterrence and denunciation, as they had for other offences, the sentencing judge could elevate the offender’s rehabilitation to the degree necessary to justify the sentence. It is however important to note that The Alberta Court of Appeal did not state that for voyeurism offences a sentencing judge could not find the primary sentencing principles to be deterrence and denunciation. Indeed, the Court was clear that unconstrained by Parliament or binding precedent, a sentencing judge has wide discretion to assign weight to the sentencing objectives.
[126] To the extent that the sentencing judge in Germain decided that the primary sentencing principles, on the facts of that case were not deterrence and denunciation, the decision is entirely out of step with the sentencing trends in Ontario and does not in any event bind me.
[127] I don’t agree with many of the sentencing judge's findings or choices in Germain as detailed by the Court of Appeal. Finding, for instance, that the offences in Jarvis were more serious, as the trial judge in Germain did, flies in the face of common sense. While all the victims were underage in Jarvis, and he breached a more significant position of trust, he did not capture any actual nudity and took all his photos while the victims were clothed and in public settings. The victims in Germain were videotaped, capturing their nudity while they went to the bathroom or changed their clothes, that is in a place and performing activities attracting a significantly higher degree of privacy. I note in the Ontario case of R. v. J.C., my colleague, Justice Masse, determined an offender taking nude stills of their 25-year-old niece in a bathroom, committed a more serious offence than Jarvis, despite their being only one adult victim, because the offender committed the offence in a much more private place and captured actual nudity. I concur with my colleague’s view.
[128] Further, cases similar to Germain in Ontario and other parts of Canada have resulted in actual jail sentences instead of conditional sentences largely because of a pressing need for the sentence to effect significant deterrence and denunciation. For instance, here in Ontario, a first-time offender who videotaped 34 women in the bathroom of a shared workplace was denied a conditional sentence and was instead sentenced to 6 months in jail and 2 years of probation. [39] Further, in British Columbia, a first-time offender who videotaped 13 co-workers, 2 of whom were underage, in an employee change room was also denied a conditional sentence and given 6 months in jail and 2 years of probation. [40] In my view, the aggravating factors in Germain were clearly more significant than they were in both of these decisions.
[129] I also have a hard time reconciling the sentence given in Germain and the Supreme Court’s clear direction that sentences for offences that violate an individual’s sexual integrity must reflect the harm caused to the victims. The harm to the dignity and sexual integrity of the victim’s in Germain is overwhelming. With the most tremendous respect to the Alberta Court of Appeal, it is difficult to see how the sentence was fit considering that clear direction.
[130] R. v. J.C. [41] bears some similarities to this case. The offender rented a room to his 25-year-old niece and set up a camera in the bathroom she used. The camera was set to take still photographs, 10 in total were recovered [42], which captured nudity. The accused received a jail sentence of 9 months concurrent to a 4-year sentence he received for sexual offences against a different niece.
[131] There are notable aggravating factors in J.C. not present here. The family relationship made the breach of trust more egregious than just the landlord-tenant relationship. Further, the accused had a prior criminal record. I also note that the activity went on for what was described as an extended time. Finally, J.C. did not have the mitigation of a guilty plea. On the other hand, notable aggravating factors here are not present in J.C. The camera in J.C. took stills only, not videos, which is more aggravating as it captures a more complete and detailed record of the private activity. Further, the activity captured in this case, sexual intercourse, in my view, constitutes the most private activity people engage in, and it attracts the highest expectation of privacy.
[132] The decision is of some modest assistance in considering the quantum to impose here. Overall, the decision does little to assist me in determining one of the key issues here, which is whether a conditional sentence is appropriate, as the sentence of 9 months was made concurrent to a 4-year sentence on other even more serious sexual offences.
[133] R. v. Dowran, is the only reported case that could be found that deals with voyeurism in the context of an Airbnb. Mr. Dowran plead guilty to two counts of voyeurism. One count related to 17 upskirt videos he took of various victims at a mall on July 21, 2022. One of the victims was 16 years old. The videos showed the underwear and genital area of the victims. There is no suggestion that the victims’ genitals however were visible. The other count related to a video from June 13 and 14, 2022, which showed Mr. Dowran using his cell phone to videotape an unknown adult woman inside his bathroom who was nude after showering. This woman was his tenant and had rented a room from him over Airbnb. Mr. Dowran was videotaping her from outside the house by directing his cell phone through a window into the bathroom. Of note, police also located other up-skirt videos from July 2022 on his device.
[134] Mr. Dowran, like Mr. Samal, immigrated to Canada from another country. Mr. Dowran, at the time of sentencing, was 40 years old, married and had a daughter. Mr. Dowran had a substantial amount of post-secondary education including a law degree from the U.K. He was hopeful to get permission to practice law in Ontario.
[135] Mr. Dowran had a risk assessment that determined him to be a below average risk to reoffend compared to other sex offenders. Mr. Dowran had engaged in significant and meaningful counselling that specifically addressed his offending behaviour before sentencing and had a positive letter from his counsellor. There was also a positive Pre-Sentence Report before the Court showing that Mr. Dowran had meaningful community supports. Also, Mr. Dowran, although initially lacking in insight, admitted at the time of sentencing that his crimes were motivated by a sexual purpose and now showed clearer insight into his offending behaviour and the harm it caused to his victims. Finally, Mr. Dowran had completed over 100 community service work hours prior to sentencing.
[136] Notwithstanding the many mitigating factors for Mr. Dowran, my former colleague Madam Justice Henschel [43] determined that a conditional sentence would not be consistent with the purpose and principles of sentencing and that the appropriate sentence was 4 months jail to be followed by two years of probation. She stated:
“Technology is omnipresent in our community and use of technology in this nefarious way for a sexual purpose threatens the perception of safety and security of others in the community, particularly women, who are often the target of such behavior. Women need to feel safe within their communities. A conditional sentence would fail to adequately denounce this predatory behavior and would not have a sufficient deterrent effect on other likeminded persons.”
[137] Mr. Dowran’s offences reflect some additional aggravating factors not present here. There were more victims, and two of them were underage. However, his offences lacked the sophistication of the offence here. In all cases Mr. Dowran used his cell phone to physically videotape the victims, whereas Mr. Samal purchased a surreptitious recording device and disguised it in the rental bedroom aimed directly at the place he expected would capture intimate activity. Mr. Samal’s method of committing his offences was much less susceptible to detection. Also, the videotaped conduct in this case is of a more significantly private activity than that captured in Dowran and done in a place that overall attracted a greater expectation of privacy. Dowran’s offences largely occurred in public and involved upskirts that did not capture actual nudity.
[138] I further note that Mr. Dowran was assessed as a lower risk to reoffend than that which I have found Mr. Samal to be on the reliable evidence in this case. Further, he had several important mitigating factors that Mr. Samal does not, including insight into his offending, insight into the harm his actions caused the victims, significant up-front counselling related to his voyeuristic tendencies, and he himself had been the victim of abuse.
[139] I found Dowran to be of real assistance in determining the correct quantum and whether the sentence should be served conditionally.
[140] Mr. Samal’s moral culpability for his offending behaviour is very high. He made a purposeful choice to invade the privacy of the victims and violate their sexual integrity and autonomy. He laid a trap for the victims, selling them trust and privacy by way of a popular rental site, with every intent on violating their privacy and trust. He kept copies of the videos for his own prurient use. There is no evidence of a mental health or addictions issue that attenuates his culpability. This was a decision he made, as a man of some 40 years, well educated and with a job that presumably requires him to be trustworthy and exercise good judgment.
[141] Mr. Samal’s offence is serious. He purposely videotaped the victims in a place where they reasonably expected, and paid for, a high degree of privacy and while they were engaged in the most intimate of activities. This is at the highest end of intrusion into privacy. He did this for his own sexual pleasure. He kept copies of the videos which permitted him to revictimize his targets. What evidence of victim impact I have on J.F. and C.L., and common sense, makes it clear that if his activities come to the attention of the unknown couple in Exhibit #3, this will surely cause them significant psychological harm. His actions have caused serious psychological harm to C.L. and J.F. His actions cause the public generally to lose confidence in their privacy when staying in rentals – and makes them feel less safe in doing so.
[142] Based on the above, I find that the primary sentencing principles I should focus on in this case are deterrence and denunciation. Mr. Samal’s rehabilitation is, however, still an important principle to consider and balance in this matter, particularly as he is before the Court for the first time to be sentenced.
[143] Considering all the circumstances and particularly the aggravating and mitigating factors in this case, I have determined that the absolute lowest appropriate sentence for this matter is 6 months incarceration to be followed by two years of probation. To be clear, the 12-month sentence requested by the Crown is not outside of the range for this case, or unreasonable, but I view it at the high end of the range for this offence and offender.
[144] While I agree with the Crown’s qualifications about Mr. Samal’s guilty plea, I still give it greater weight. In the current climate of strained Court resources, I feel I must give real weight to the time savings this plea achieved and sparing of the victims from testifying. I have also considered certain collateral consequences to which I will refer to later.
[145] What is left to be determined is whether I should permit that jail sentence to be served conditionally, and if so, whether the quantum should remain 6 months.
[146] I must consider the remaining preconditions to a conditional sentence. Would serving his sentence in the community endanger the public? I note that Mr. Samal does not have a record and there have been no new charges since he was charged and released some 18 months ago. This tends to suggest he would not endanger public safety if left to serve his sentence in the community.
[147] On the other hand, Mr. Samal presents as being in the 3rd of 5 ascending categories of risk on the Static-99R, showing him to be an average risk to reoffend compared to other sex offenders. Further, he shows no insight into his offending behaviour, or is being dishonest about it, and there are concerns about some of his decisions which raise his risk in my view. He continues to rent a room in his home to an unknown tenant. He is unwilling to disclose his conviction to his employer, which makes me doubt his tenant is aware of it. Mr. Samal’s indication that what he has learned is to put up a sign warning of a camera does nothing to assuage the concerns raised by this matter. The ability to reoffend even in his own home, where he committed the offence before me, is a real concern. This says nothing of his workplace who does not seem to be aware of this matter.
[148] I have also found Mr. Samal to be untrustworthy. The manner in which he committed the offence, the lies told to the victims after in an attempt to cover his tracks, his denials of an obvious sexual motive, his claims to have divested himself of any voyeuristic material and the means to obtain it are but some examples of his deceit. I am not convinced he can be trusted to follow strict conditions. While he has not breached his bail, the conditions are hardly restrictive in any meaningful way.
[149] In short, I am not necessarily convinced that serving his sentence in the community would not endanger community safety, but in any event, I find that the evidence clearly establishes to me that a conditional sentence would not be consistent with the fundamental purpose of sentencing or the principles of sentences.
[150] From the point of view of restorative justice this case is unremarkable. The only goal that can be potentially achieved by way of restorative justice is to try and rehabilitate Mr. Samal. It is unclear to me how likely that is. His failure to be honest or have any insight into his offending behaviour, while not a barrier, is a concern.
[151] It was argued that granting a conditional sentence could be restorative in that it would allow Mr. Samal to keep his employment and support his family. However, as stated, I am concerned that what the Court would really be doing is assisting Mr. Samal in continuing employment that his employer would terminate if they knew of this matter. Further, even if the Court thought it appropriate to permit this, there is a real risk he will lose the employment during the sentence, causing this justification to dissipate.
[152] The victims’ loss of trust and feeling of safety cannot be restored by way of a conditional sentence.
[153] This case gives rise to a pressing need for a sentence that sends a strong deterrent message. Mr. Samal, in my view, given his denials of sexual motive and other untruths, also requires specific deterrence. Mr. Samal’s use of sophisticated but easily attainable technology to purposely invade the victim’s privacy by using a rental room as a trap is easily replicated, and very difficult to detect. When offenders, including Mr. Samal, who commit such offences are convicted, the Court must send a clear message that such behaviour will generally receive significant penalties. In the circumstances of this case, ordering Mr. Samal to serve his sentence in the very place he committed the offence before me, fails to do that.
[154] I have also found that Mr. Samal’s moral culpability is very high. His flagrant abuse of trust and purposeful invasion of the victim’s high expectation of privacy and violation of their sexual integrity is deserving of a strong denunciatory message.
[155] Considering the principle of restraint, and with my agreement for reasons given in Jarvis and Dowran, I find for this offence, committed in these circumstances by this offender, that only a real jail sentence would be appropriate. A conditional sentence would not be a proportionate sentence in this matter. Even if I extended the sentence to the maximum allowable under the law, and placed Mr. Samal on house arrest throughout, the sentence would fail to provide the level of deterrence and denunciation required in this case. Real jail is necessary.
[156] I come back to the quantum of sentence and note I considered the collateral consequences that Mr. Samal’s actions will cost him his employment and separate him from his family for a period. Of course, he was aware of those risks when he chose to commit this offence and proceeded anyway. Still, these are mitigating factors I have given weight to in coming to my determination on the appropriate length of sentence.
[157] Finally, when considering the need for Mr. Samal’s rehabilitation I have determined that a lengthy probation order that follows the jail sentence will serve that purpose and provide Mr. Samal with the structure and programming I believe he requires.
Sentence
[158] Therefore, on the charge of voyeurism, I sentence the accused to a period of incarceration for six months.
[159] There is an order under s.743.21 of the Criminal Code that the accused not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means with C.L. or J.F.
[160] The jail sentence will be followed by a period of probation for a term of two years with the following conditions:
i. Keep the peace and be of good behaviour.
ii. Appear before the court when required to do so by the court.
iii. Notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change in employment or occupation.
iv. Report to a probation officer within 2 working days of your release from custody; you may make your first reporting by telephone and, after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.
v. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer, including for mental health, impulsive decisions making and sexual offending and complete them to the satisfaction of the probation officer.
vi. You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
vii. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
viii. Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means with C.L. or J.F.
ix. Do not be within 100m of any place where you know C.L. or J.F. to live, work, go to school, frequent or any place you know them to be.
x. Do not be within 25m of C.L. or J.F.’s person.
xi. Do not list or rent any properties including through rental services or third parties such as Airbnb and VRBO.
xii. You are to delete any images or any pictures or videos of unknown persons that are in your possession.
xiii. Do not possess any electronic devices capable of making visual recordings except one personal cell phone.
[161] Given the impact this sentence will have on Mr. Samal’s finances I find that it would be an undue hardship to impose the victim fine surcharge and it is waived.
Released: January 10, 2025
Signed: Justice J. Miller
Footnotes
[1] R. v. Chow, 2022 ONCA 555, at paras. 1 and 2
[2] R. v. Downes, 2023 SCC 6
[3] Exhibit #1A and 1B
[4] Exhibit #2
[5] Exhibit #3 (sealed by the Court)
[6] Exhibit #4
[7] R. v. Dowran, [2024] O.J. No. 3182
[8] When I speak of being satisfied in this judgement, I mean satisfied beyond a reasonable doubt based on the evidence before me.
[9] J.F. is an adult male whose name I am initializing to protect his privacy, he is in a relationship with C.L.
[10] C.L. is an adult female whose name I am initializing to protect her privacy, she is in a relationship with J.F.
[11] 13 in a case involving a child victim.
[12] 26 in the case of a child victim.
[13] See s.718 of the Criminal Code
[14] R. v. Hunt, [2018] O.J. No. 2700 at para. 9 and also R. v. J.R.B., 2022 BCPC 43.
[15] R. v. Suter, 2018 SCC 34 at para 46
[16] When sentenced under s.239(1)(b), the remaining attempted murder cases caught by 239(1)(a) and (a.1) are already ineligible because of having minimum sentences.
[17] S.742.1 CCC, R. v. Proulx 2000 SCC 5, [2000] 1 S.C.R. 61
[18] R. v. Proulx, supra, at para. 79. NOTE: At the time of Proulx, no specific enumerated offences were excluded in the Criminal Code; however, this statement remains true as it is a statutory criterion in s.742.1 that the offence is not one listed in s.742.1(c) or (d).
[19] Ibid, at para. 85
[20] Ibid, at para. 90
[21] Ibid, at paras. 81-85
[22] Ibid, at paras. 95 and 96
[23] Ibid, at para. 100
[24] Ibid, at para. 100
[25] Ibid, at paras. 102-106
[26] Ibid, at para. 107
[27] Ibid, at para. 107.
[28] Ibid, at paras. 106 and 107
[29] R. v. Fice, 2005 SCC 32 and R. v. McCaw, 2023 ONCA 8
[30] R. v. Poulin, 2019 SCC 47, [2019] 3 SCR 566 at para. 61; R. v. R.O., 2023 BCCA 65, at para. 49; R. v. J.N.Z., [2023] O.J. No. 4187 at para. 32
[31] See R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; R. v. A.J.K. 2022 ONCA 487; R. v. Downes, supra; R. v. Scott, [2024] O.J. No. 3530;
[32] R. v. Downes, supra, at para. 28
[33] Ibid, at para. 46
[34] Ibid, at para. 47; See also R. v. Friesen, supra, at paras. 56-59
[35] Ibid, at paras. 46-48
[36] See for instance R. v. Friesen, supra, at para. 76
[37] See: R. v. Jarvis, 2019 ONSC 4938; R. v. J.C., [2021] O.J. No. 7396; R. v. Cairns, [2021] O.J. No. 4748; R. v. Dowran, [2024] O.J. No. 3182
[38] R. v. Germain, 2022 ABCA 257
[39] See R. v. Cairns, supra.
[40] See R. v. Leighton, 2021 BCPC 27
[41] R. v. J.C., [2021] O.J. No. 7396
[42] Evidence established many more however had been taken.
[43] Then of the Ontario Court of Justice