R. v. Bahamonde, 2021 ONSC 7526

COURT FILE NO.: CR-20-40000271-0000

DATE: 20211115

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

her majesty the queen

• and -

SERGIO BAHAMONDE

J. Andres Hannah-Suarez and Andrew Weafer, for the Crown

Anthony Demarco, for Mr. Bahamonde

HEARD: October 18, 19 and 20, 2021

M. FORESTELL J.

REASONS FOR JUDGMENT

1. Overview of the case

Overview of the case

1Mr. Bahamonde entered a plea of not guilty to a charge of voyeurism. The trial proceeded before me on October 18, 2021. The charge reads as follows:

SERGIO BAHAMONDE stands further charged that he, between the 27th day of April in the year 2018 and the 3rd day of May in the year 2019 at the City of Toronto in the Toronto Region did, without lawful excuse, surreptitiously make a visual recording of a person who was in circumstances that gave rise to a reasonable expectation of privacy when that person was exposing genital organs or anal regions, with the recording being done for the purpose of recording that person in such a state, and thereby commit an offence under Section 162, subsection (1), clause (b) of the Criminal Code.

2The evidence for the Crown consisted of the following:

1. An agreed statement of fact which states: During the search of Mr. Bahamonde's residence, police located 25 unique photographs and videos that were surreptitiously recorded. Police also located a Huawei cellular phone.

2. These images and videos are "up-skirt" recordings that were created on a Huawei phone consistent with the phone seized by the police. The materials appear to primarily depict unsuspecting female victims on the TTC and at one of the restaurants where Mr. Bahamonde worked. Mr. Bahamonde's face is visible on many of the video recordings. These recordings were made between and including April 27, 2018 and May 3, 2019. Mr. Bahamonde's position is that the videos and images were recorded with the consent of the females depicted in the recordings….In his statement to the police on July 24, 2019 he admitted to recording the various "up-skirt" photos/videos but claimed that they were not taken without the women's consent. Mr. Bahamonde claimed that he hired escorts to attend the subway with him so that he could live out a fantasy.

3. An excerpt of the statement made by Mr. Bahamonde to the police on July 24, 2019 (video and transcript) in which he described hiring escorts to live out his fantasies and told the police that he had consent for the videos. This statement was admitted on consent and conceded to be voluntary.

4. 25 brief videos seized from Mr. Bahamonde’s phone.

5. Testimony from DC Zachary Firth that he did not access the call log of Mr. Bahamonde’s phone.

3Mr. Bahamonde called no evidence.

The Videos

The Videos

4In 17 of the 25 short videos, the genital or anal regions of the subjects are not visible. The videos depict upper legs and, in some cases, shorts or part of the underwear of the subject.

5I will describe the remaining videos in more detail:

1. In Exhibits K and L, the video shows the buttocks of a person wearing very short shorts and carrying a backpack. The two videos are of the same woman. The Crown does not rely on these videos to make out the offence but as part of Mr. Bahamonde’s pattern of conduct.

2. Exhibit M shows the buttocks of a person under a white skirt.

3. Exhibit O briefly shows part of a buttock under a skirt.

4. Exhibit Q shows the buttock area under a skirt. The subject is wearing a black and white backpack. Exhibit X appears to be a video of the same person as in Exhibit Q.

5. Exhibit T shows the buttocks are of a person wearing a skirt. Exhibit W appears to be an edited version of the same video.

6In total, there appear to be relevant videos of four subjects that show the area of the buttocks of each of those persons.

Positions of the Parties

Positions of the Parties

7The position of the Crown is that I should reject the exculpatory portion of Mr. Bahamonde’s statement and it should not raise a reasonable doubt. The Crown submits that the videos of the four subjects set out above clearly depict surreptitious recordings of the anal regions of some of the subjects. The other videos demonstrate a pattern of conduct on the part of Mr. Bahamonde in attempting to capture images of women’s genital or anal regions.

8Counsel for Mr. Bahamonde argues that the charge has not been made out because there was no recording of the anal region of any subject. His submission is that the recording of a bare buttock is not a recording of the anal region. He further submits that the subsection under which Mr. Bahamonde was charged does not capture his conduct because the subjects were not nude. He further submits that I should have a reasonable doubt with respect to the recordings being surreptitious because of Mr. Bahamonde’s statement to the police, that he had the consent of the subjects having hired them to “live out his fantasies”.

Legal Principles

Legal Principles

9The onus is on the Crown to prove all of the elements of the charge beyond a reasonable doubt. In deciding whether the Crown has proved the elements of the charge beyond a reasonable doubt, I must consider the exculpatory statement of the accused to the police. If I believe Mr. Bahamonde’s statement that the recordings were made with the knowledge and consent of the subjects, I must acquit Mr. Bahamonde. The recordings would not be proven to have been made surreptitiously. Even if I do not believe the statement of Mr. Bahamonde, if it raises a reasonable doubt, I must acquit him. Even if the statement does not raise a reasonable doubt, I cannot convict Mr. Bahamonde unless the Crown has proven all of the elements of the offence beyond a reasonable doubt.

10The offence of voyeurism is found in s. 162(1) of the Criminal Code. It provides:

162 (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;

(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or

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

11In R. v. Trinchi, 2019 ONCA 356, Juriansz J.A. explained the offence of voyeurism contained in s. 162:

6 Parliament enacted s. 162(1) of the Criminal Code in 2005. As stated by Wagner C.J. in the Supreme Court's recent decision in R. v. Jarvis, 2019 SCC 10 (S.C.C.), at para. 48, Parliament's object in creating the voyeurism offence was "to protect individuals' privacy and sexual integrity, particularly from new threats posed by the abuse of evolving technologies." Conceptualizing voyeurism as both a sexual and a privacy-based offence was favoured by the majority of respondents to the government consultation paper circulated in 2002: Canada, Department of Justice, Voyeurism as a Criminal Offence: A Consultation Paper. The provision eventually enacted was intended to deal with both related harms: Jarvis, at para. 51.

7 Section 162(1) addresses three different situations. These are set out in paragraphs (a), (b) and (c). The application of all three paragraphs is subject to the two limitations in the opening words of the section. First, the person who is observing or making the recording must act ‘surreptitiously’. Second, the person observed or recorded (who I will call the ‘subject’) must be in circumstances that give rise to ‘a reasonable expectation of privacy’.

8 Paragraph (a) addresses the situation in which the subject is in a place in which a person can reasonably be expected to be nude, exposing intimate body parts, or engaged in explicit sexual activity. It is worth noting that paragraph (a) does not require the person to be actually nude, exposing intimate parts of his or her body, or engaged in sexual activity. It is enough if they are in a place where they may reasonably be expected to be in such a state, such as a changing room, toilet, shower stall, or bedroom. Paragraph (a) criminalizes making peepholes or the installation of cameras to observe people in such places. A person who installed a hidden camera in a fitting room of a department store would likely be caught by this provision if the only recording he captured was of a fully clothed customer trying on different hats. Paragraph (a) does not require the accused to act for a sexual purpose. It would apply to an accused who hoped to profit by posting recordings on the Internet.

9 Paragraph (b) applies when the subject is nude, exposing sexualized parts of his or her body, or engaged in explicit sexual activity. The nature of the location does not matter, but the accused must have the purpose of observing or recording the subject in such a state or engaged in such an activity. As in paragraph (a), it is not necessary for the Crown to prove the accused acted for a sexual purpose. Paragraph (b), like paragraph (a), would apply to an accused whose purpose was commercial.

10 Paragraph (c) applies to an accused acting for a sexual purpose. Paragraph (c) applies whether the subject is clothed or unclothed — no matter what she or he is doing.

11 It is worth repeating that the opening words of the section specifies limitations that apply to all three paragraphs. The accused must have acted ‘surreptitiously’ and the subject must have had a reasonable expectation of privacy in the circumstances.

12Specifically addressing the elements of s. 162(1)(b), Juriansz J.A. wrote:

12 The appellant was charged under s. 162(1)(b). Section 162(1)(b) requires proof of the following elements:

1. The accused observed or recorded the subject;

2. The accused's observation or recording was done surreptitiously;

3. The subject was in circumstances that gave rise to a reasonable expectation of privacy;

4. The subject was nude or exposing sexual parts of her body or engaged in sexual activity; and

5. The observation or recording of the subject was done for the purpose of recording them in such a state.

13In this case, it is not disputed that the accused observed and recorded the subjects. The subjects of these videos, unless I accept that they consented to the videos, had a reasonable expectation that their genital and anal regions would not be viewed and recorded while they walked in public wearing skirts. As the Supreme Court of Canada held in R. v. Jarvis, 2019 SCC 10 at paragraph 40:

40 One can think of other examples where a person would continue to expect some degree of privacy, as that concept is ordinarily understood, while knowing that she could be viewed or even recorded by others in a public place. For example, a person lying on a blanket in a public park would expect to be observed by other users of the park or to be captured incidentally in the background of other park-goers' photographs, but would retain an expectation that no one would use a telephoto lens to take photos up her skirt (a hypothetical scenario discussed in Rudiger, at para. 91). The use of a cell phone to capture upskirt images of women on public transit, the use of a drone to take high-resolution photographs of unsuspecting sunbathers at a public swimming pool, and the surreptitious video recording of a woman breastfeeding in a quiet corner of a coffee shop would all raise similar privacy concerns.

14And at paragraph 116 of Jarvis:

An insidious characteristic of modern technology is that it allows a viewer to observe from a position where they could not, but for the technology. For example, in R. v. Rudiger, 2011 BCSC 1397, 244 C.R.R. (2d) 69(B.C. S.C.), Voith J. held that children playing in swimwear in a park retained a reasonable expectation of privacy. The technology used to observe them allowed the accused effectively to place himself near the children's genitals and buttocks. Though the accused may have been able to observe the children from a distance, he would not have been allowed by the children — or their caregivers — to observe from such proximity without the enablement of the technology. As a result, there was a violation of the children's reasonable expectation of privacy by the accused, despite the fact that the children were in plain view to the public. This is a useful example of the proper interpretation of the provision.

Analysis

Analysis

15I have carefully considered the statement of Mr. Bahamonde to the police. I do not believe his statement. Mr. Bahamonde told the police that he paid “escorts” to allow him to take “up-skirt” videos. He said that he met them near TTC stations, negotiated the services and then travelled with them on the TTC. He said that he did not ever take such recordings without consent.

16The videos are completely inconsistent with this account. Most of the videos show Mr. Bahamonde moving quickly to catch up with a person in a skirt. The videos are not consistent with Mr. Bahamonde being with the subjects. One of the videos depicts a woman holding hands on an escalator with another person as Mr. Bahamonde videorecords the area under the woman’s skirt. Another two videos depict two women moving along the street together as Mr. Bahamonde attempts to videorecord under their skirts.

17Many of the videos are very brief — lasting as little as five seconds. This is also inconsistent with Mr. Bahamonde’s statement that he entered into agreements with the subjects to videorecord under their skirts.

18I reject the statement of Mr. Bahamonde. It does not raise a reasonable doubt.

19I also reject the argument of counsel for Mr. Bahamonde, that the section under which Mr. Bahamonde is charged does not capture his conduct because the subjects were not nude, nor were they exposing sexual parts of their bodies.

20The subjects of these videos were not deliberately exposing sexual parts of their bodies, but sexual parts of their bodies were exposed through the use of the camera by Mr. Bahamonde.

21I also reject the argument that the buttock area depicted in the videos taken by Mr. Bahamonde is not captured by the phrase “anal region” in s. 162(1)(b) of the Criminal Code.

22In R. v. Rudiger, 2011 BCSC 1397 (B.C. S.C.), Voith J. upheld the findings of the trial judge at para. 119 (2010 BCPC 182 (B.C. Prov. Ct.)) that,

(i) the anal region is defined as the area around the anus;

(ii) there is no implication that the anus must be visible; and

(iii) buttocks are in the anatomical area of the anus and therefore constitute the anal region.

23I agree with this interpretation. The video-recordings in this case clearly show the buttocks of four subjects. I am satisfied beyond a reasonable doubt that Mr. Bahamonde recorded these subjects and did so surreptitiously. I am satisfied beyond a reasonable doubt that each of the subjects had a reasonable expectation of privacy when they exposed their buttocks beneath their skirts.

24I therefore find Mr. Bahamonde guilty of Count 15 on the indictment.

Forestell J.