Court File and Parties

COURT FILE NO.: CR-10-00010769-00AP DATE: 20161005 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – THARISH RAVINDRAN Appellant

Counsel: Jennifer Gleitman, for the Crown David E. Harris, for the Appellant

HEARD: September 25, 2015, adjourned for further written submissions, received January 14, 2016

Reasons for Decision

EDWARDS J.:

Overview

[1] What is “explicit sexual activity”? What is “an agreed statement of fact”, and what is an “informal admission”? This is an appeal on the accused’s conviction on one count of Voyeurism, contrary to section 162 of the Criminal Code. Specifically, the accused was charged with “…surreptitiously observe by recording with a hidden camera a person who was in circumstances that gave rise to a reasonable expectation of privacy when that person was engaged in explicit sexual activity…” [Emphasis added]

[2] A significant part of the Crown’s case was premised on a number of pictures depicting the complainant in a state of complete nudity, which pictures were taken by the accused without her knowledge (“The photographs”).

[3] At the completion of the Crown’s case the defence moved for a directed verdict, arguing that on the basis of the pictures the Crown had failed to make out a “prima facie” case on the “explicit sexual activity” element of the offence charged.

The Facts

[4] The complainant, S.C. (S.C.), met the Appellant in grade 12. With the passage of time, their relationship developed into a dating relationship of boyfriend and girlfriend. The relationship terminated in September of 2010.

[5] On October 5, 2010, K.B. (K.B.), who was an acquaintance of S.C. and also a friend of the Appellant, saw photographs of S.C. and the Appellant on Facebook.

[6] It is beyond dispute, from having reviewed the photographs which were entered into evidence at trial, that these photographs depicted S.C. in a state of complete undress. K.B. contacted S.C. and advised her what she had observed on Facebook. The matter was eventually reported to the police and the Appellant was charged with Voyeurism, contrary to section 162(1)(b) of the Criminal Code.

[7] S.C. testified at trial and confirmed that the pictures were of her and that they were taken during the summer of 2010. She further testified that from the surroundings depicted in the pictures they were taken in the Appellant’s bedroom. S.C. testified that the pictures were taken without her consent, and it was her belief that the pictures had been taken from a webcam on the Appellant’s computer.

[8] At the beginning of the trial, Crown counsel made the following statement to the Court:

MS. HUTCHINSON: And Your Honour, also before we call the first witness I would have been calling first a witness by the name of K.B., K-X-X-X-X, the second name is K.B., B-X-X-X-X-X-X-X and my friend has kindly indicated what I would be calling for is not contentious, so he is content if I just advise the court of what you would have heard from Ms. K.B..

THE COURT: Okay.

MS. HUTCHINSON: And that is that Ms. K.B. is an acquaintance of the complainant and a friend of Mr. Ravindran, that she received photographs on her Facebook account on October 5th or thereabouts, right around the midnight time, of who she recognized to be, she believed to be the accused and the complainant engaged in – in states of undress and engaged in sexual activity and that she contacted the complainant right around midnight of October 5th and advised her of what she saw and that the complainant appeared to be upset about that, court’s indulgence, and that’s the extent of what I anticipated would have been relevant evidence from her.

I will refer to the aforesaid comments of Ms. Hutchinson as “K.B.’s Evidence”.

[9] S.C. testified at trial that there had never been any conversations between herself and the Appellant about the Appellant taking naked photographs of her, nor was she ever aware of any such photographs being taken by the Appellant.

Position of the Crown

[10] The Crown argues that the photographs entered into evidence at trial were graphic, unambiguous, and depicted explicit sexual activity involving a 17 year old girl with the Appellant. It is suggested by the Crown that one of the photographs clearly depicts the Appellant engaging in sexual relations with S.C..

[11] As for the decision of the trial judge with respect to the Appellant’s motion for a directed verdict, the Crown correctly notes that the applicable standard of review for a ruling on a motion for a directed verdict is correctness (See R. v. Hutchinson, [2010] N.S.J. 16 and R. v. Beals, 2011 NSCA 42, [2011] N.S.J. 231).

[12] Crown counsel notes that while the Voyeurism provisions of s. 162(1)(b) of the Criminal Code do not contain a definition of “explicit sexual activity”, the meaning of that phrase has been considered by various courts in the context of obscenity and child pornography offences. (See R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 and R. v. Smith, [2005] O.J. No. 2811).

[13] The Crown argues that the determination of the Appellant’s motion for a directed verdict involved more than a visual examination of the photographs. The Crown argues that its case went beyond the four corners of the photographs, which substantiated S.C.’s viva voce evidence that she had been surreptitiously recorded while engaging in sexual activity with the Appellant. The Crown argued that the act of recording S.C. during “explicit sexual activity” and not an analysis of the actual photographs formed the basis of the Appellant’s criminal responsibility. Fundamentally, the Crown argues that it is the act of observing and/or recording the “explicit sexual activity”, not the simple photographs themselves which form the basis for the charge.

[14] Dealing with the decision on the motion for directed verdict, the Crown argues that the trial judge was properly attuned not only to the aforesaid distinction but also to the legal definition of “sexually explicit”, adopted from the decision of the Supreme Court of Canada in Sharpe, supra. In that regard, Crown counsel points to that part of Sharpe where the Supreme Court of Canada defined “sexually explicit” as requiring something more than an ambiguous depiction of sexual activity in order for the offence alleged to be made out. The Crown argues that the trial judge correctly instructed himself with respect to the term “explicit”, which it was noted must be given meaning in accordance with the “usual” definition of the word. The Crown emphasizes the following determination of the trial judge:

This would suggest to me that nothing is left to be implied or imagined, or in other words, the sexual activity must be established to be “evident”, “clear” and “definite”.

[15] It is argued on behalf of the Crown that based on the entirety of the evidence, which included the evidence of K.B., the evidence of S.C. as well as the photographs themselves, that there was an evidentiary basis for a reasonable person to conclude that S.C. had been recorded, as reflected in the photographs, at a time when she was engaged in “explicit sexual activity”.

[16] As for the issue with respect to whether or not K.B.’s evidence was an agreed statement of fact or an informal admission, Crown counsel - at the hearing of the appeal, acknowledged in oral argument that without K.B.’s evidence the Crown had an “uphill battle”. It was the Crown’s submission at the hearing of the appeal that K.B.’s evidence, as put before the court and referenced in paragraph 9 above, was an agreed statement of fact.

Position of the Defence

[17] While the defence accepts that the trial judge, in his reasons on the directed verdict motion, had properly acknowledged the binding nature of the definitional statements in Sharpe and Smith, supra, it is argued that the trial judge’s reasons did not abide by the parameters of the definition set forth in Sharpe with respect to “explicit sexual activity”.

[18] Counsel for the Appellant argues that the trial judge was in error in coming to the conclusion that he did with respect to the photographs depicting “explicit sexual activity”. It is argued on behalf of the Appellant that the photographs were not “at the extreme end of the spectrum”, nor did they depict graphic sexual activity.

[19] It is argued on behalf of the defence that what is depicted in the photographs falls short of the minimum definition set forth in Sharpe, as follows:

At its furthest reach, this section might catch a video of a caress of an adolescent girl’s naked breast, but only if the activity is graphically depicted and unmistakably sexual.

[20] As against the definition in Sharpe that explicit sexual activity “…catches only depictions of sexual intercourse and other non-trivial sexual acts”, it is argued on behalf of the defence that the photographs were not what was contemplated by way of “explicit sexual activity”.

[21] Counsel for the defence argues that the contextual factors which were relied upon by the trial judge were largely irrelevant to the issue of “explicit sexual activity”, as demonstrated by the pictures entered into evidence. The age of the Appellant and S.C., which were relied upon by the trial judge, were irrelevant to the question raised on the motion for the directed verdict. It is further argued that the nature of the relationship between the Appellant and S.C., and the Appellant’s threat to release pictures of the complaint, fall into the same category.

[22] As for the trial judge’s conclusion that there was an available inference from the pictures that sexual activity had “occurred, is occurring, or is about to occur”, the defence argues that this conclusion was both speculative and irrelevant. It is argued on behalf of the defence that there must be not only “explicit sexual activity”, but it must be recorded in order to constitute the offence. Defence counsel argues that to speculate about past or future activity without evidence that the activity was recorded is not sufficient to constitute the offence charged.

Analysis

Agreed Statement of Fact or Informal Admission

[23] An admission of fact must be clear, unambiguous, precise and unequivocal before a court can accept it as an admission of fact (See R. v. Asp, 2011 BCCA 433, 278 CCC (3d) 391). A formal admission means that the Crown does not have to prove a fact in issue, and a formal admission is binding on the party which makes the admission.

[24] The question this court must decide is whether or not K.B.’s evidence, reflected at paragraph 9 above, is an agreed statement of fact or whether it is an informal admission. The Crown argues that it is an agreed statement of fact. The defence says it was not an agreed fact.

[25] The distinction between an informal and a formal admission is canvassed in Watt’s Manual of Criminal Evidence, 2016, at para. 36.02 as follows:

Informal admissions should not be described as an agreed statement of fact since such admissions are merely items of evidence available for self-contradiction or rebuttal. Formal admissions dispense with the need to prove a fact in issue, are binding on the party who makes them, and are not easily withdrawn.

[26] The question of whether K.B.’s evidence, as reflected at paragraph 9 above, was an agreed statement of fact was canvassed in a re-attendance before the trial judge on June 23, 2011. At that time the trial judge engaged counsel in the following dialogue:

THE COURT: Well, the – the only caveat would be what court if any does the acknowledgment of agreed facts have to the argument, because I – if I noted it correctly there’s an acknowledgment that the photographs by accepting the witness’ evidence, the witness wasn’t called but his evidence was read in, there’s an acknowledgment of the depiction of sexual act, it’s just a question of whether it’s explicit…So, even if there’s a factual admission that yes, certain of those photographs depict sexual activities and – and that’s acknowledged, it doesn’t really address the motion issue which is – even if it does, is it explicit…

[27] In addition to the re-attendance by counsel on June 23, 2011, the trial judge had the benefit of receiving written submissions from counsel. In the written defence submissions on the motion for a directed verdict, counsel referred the court to the leading cases dealing with “explicit sexual activity”, and specifically Smith and Sharpe, supra.

[28] The defence in its written submissions to the trial judge asked the court to take note of what evidence was before the court and what evidence was not before the court relating to the subject images in the case, and the circumstances and context in which they were taken. It was argued that the only evidence before the court was that of the complainant, S.C..

[29] With respect to S.C.’s evidence, the defence took note of the fact that she recognized herself in the still photographs; she recognized the bedroom as being that of the Appellant; she believed that the images were taken during the summer of 2010; and that they possibly engaged in sexual intercourse either before or after the taking of the photographs. It was noted by the defence with respect to S.C.’s evidence that she had no other knowledge of the taking of the images or the context in which they were taken and, specifically, she did not know if the images were taken as still photographs or extracted from a video recording.

[30] The defence in its written submissions did not deal with K.B.’s evidence, as set forth in paragraph 9 above. The written argument by the defence, however, by inference refers to what evidence was before the court, and it can be inferred that it was the position of the defence that K.B.’s evidence was not an agreed statement of fact.

[31] What occurred at the beginning of this trial, as it relates to K.B.’s evidence, demonstrates the care counsel and the court must take in properly characterizing an admission or an agreed statement of fact.

[32] At best, what occurred at the beginning of the trial was an acknowledgment that K.B.’s evidence was not “contentious”. In my view, the Crown reviewed what K.B. would have testified to had she been called as a witness. This was not an agreed statement of fact, it was an informal admission at best.

[33] The defence argues as part of its appeal that the trial judge improperly relied upon K.B.’s evidence in denying the defence motion for a directed verdict. In that regard, the learned trial judge stated:

When these considerations are referenced within the context of the entirety of the trial record here, I conclude the acknowledged evidence of K.B. and that of the complainant herself, support the Crown’s assertion that at least some of the images in issue, particularly those featuring a naked complainant kneeling on all fours on the applicant’s bed in a sexually provocative fashion, may serve to provide a factual basis for a reasonable person to conclude sexual activity in an explicit nature is depicted. [Emphasis added]

[34] I reject the defence submission in this regard, because I do not view the reliance by the trial judge on K.B.’s evidence as in any way constituting evidence of an admission. The trial judge treated K.B.’s evidence as “acknowledged evidence”. In my view, while his language may not have stated as much in so many words, “acknowledged evidence” does not equate to an admission or fact but, rather, equates to an informal admission.

Explicit Sexual Activity

[35] In rejecting the defence motion for a directed verdict the learned trial judge, in his Reasons, stated:

Firstly, the term “explicit sexual activity” as denoted in s. 162(1)(a) must be defined in a way that gives meaning to the term “explicit”. As Parliament has chosen to describe the offending form of sexual activity by the word “explicit”, it is reasonable to conclude something more than an ambiguous depiction of sexual activity must be required in order for the offence alleged to be viable.

Secondly, the term “explicit” must be given meaning in accordance with the usual definition of the word. This would suggest to me that nothing is left to be implied or imagined, or in other words, the sexual activity must be established to be “evident”, “clear”, and “definite”.

[36] After a review of the evidence and the parties submissions, the learned judge concluded at paragraph 28 as follows:

I conclude a reasonable person viewing these images, within the context and the circumstances referenced in the evidence of the complainant, and the other witness whose evidence was admitted, would permit a reasonable fact based inference to be drawn that at least several images depict “explicit sexual activity”.

[37] It could be suggested that the aforesaid comments of the trial judge, at paragraph 28 of his Reasons, may have constituted an inadmissible reliance on what was stated in his Reasons as the “other witness whose evidence was admitted”. In my view, when viewed in the entire context of his reasons denying the motion, at its highest the trial judge accepted the evidence of K.B. as being the “acknowledged evidence”, or what I refer to as an informal admission.

[38] The Appellant was convicted of Voyeurism. The evidence before the trial judge and the motion for directed verdict was not just the photographs. There was also the evidence of S.C., who had confirmed that the photographs had been taken of her while engaged in sexual activity with the Appellant. She further testified the Appellant either recorded or took the photographs without her permission.

[39] The actus reus of the offence of Voyeurism consists of the surreptitious observation or visual recording of anyone in circumstances that give rise to a reasonable expectation of privacy, in any of the circumstances which are set forth in paragraphs (a) through (c) of section 162(1) of the Criminal Code. The specific charge laid in this case required the Crown to prove that the person, S.C., was engaged in explicit sexual activity.

[40] The photographs, together with the evidence of S.C., was the evidence that the trial judge had to consider on the motion for a directed verdict. The evidence of S.C. confirmed the essential ingredients of the actus reus of the offence. The photographs were the evidence the trial judge had to consider with respect to whether there was a depiction of “explicit sexual activity”. With the exception of one photograph, all of the photographs depict S.C. naked, in provocative poses, but not directly engaged in explicit sexual activity.

[41] One photograph, however, which was marked as Photograph 6, depicts S.C. in a far different state. Anyone objectively viewing Photograph 6, which shows S.C.’s genital area with her legs spread wide apart and some of the body parts of another individual, could not come to any other conclusion other than S.C. was engaged in explicit sexual activity.

[42] In my view, the inferences drawn by the learned trial judge were entirely appropriate on a motion for a directed verdict. A review of the photographs themselves, particularly the photograph marked as Photograph 6, in my view fall well within the description of “explicit sexual activity”, as particularized in the following quotation of the Supreme Court of Canada in Sharpe at paragraph 49.

I conclude that “explicit sexual activity” refers to acts which viewed objectively fall at the extreme end of the spectrum of sexual activity – acts involving nudity or intimate sexual activity, represented in a graphic and unambiguous fashion, with persons under or depicted as under 18 years of age. The law does not catch possession of visual material depicting only casual sexual contact, like touching, kissing, or hugging, since these are not depictions of nudity or intimate sexual activity. Certainly, a photo of teenagers kissing at summer camp will not be caught. At its furthest reach, the section might catch a video of a caress of an adolescent girl’s naked breast, but only if the activity is graphically depicted and unmistakably sexual… (For a discussion of such concerns see B. Blugerman and L. May, “The New Child Pornography Law: Difficulties of Bill C-128" (1995), 4 M.C.L.R. 17)

[43] Objectively viewed, what is depicted in Photograph 6 falls well within the definition of “explicit sexual activity”. The learned trial judge did not make any error in denying the defence motion for a directed verdict. The appeal is therefore dismissed.

[44] The appeal in this matter was argued on September 25, 2015. As issues were raised during the appeal with respect to whether or not the comments of the Crown at paragraph 9 above constituted an agreed statement of fact, further submissions were requested and received from the defence on January 14, 2016, that were forwarded to me by email on February 17, 2016. No response to the supplementary defence written submissions was received from the Crown. Through oversight, this matter was not put into my reserve pending and I apologize to counsel for the delay in rendering my decision in this matter.

Justice M.L. Edwards

Released: October 5, 2016