Accused not “surreptitious” when openly taking pictures
The Ontario Court of Justice considered the purpose behind the voyeurism provisions in the Criminal Code with the decision in R v H.L., 2014 ONCJ 130 (no hyperlink available). The accused had gone to a clothing optional beach on Toronto Island, with his son in a stroller, and while there had taken photographs of various nude people. In particular he took photographs of the complainant MW without her knowledge. When she was informed by other beachgoers of this fact she confronted the accused, and at her request he deleted those photographs. MW spoke to others and eventually to the lifeguards, who called the police: they arrived some time later and arrested the accused, who was still there. Forty-seven photographs of adults, other than MW but taken that day, were found on the accused’s camera. The accused was charged with voyeurism and mischief, but the trial judge found him not guilty.
The accused did not dispute the fact that he had taken the photos, but argued that it was not voyeurism. The trial judge noted that the policy rationale for the creation of the offence of voyeurism was technological advances and the inability of the law to address new concerns. He quoted at para 20 from "Voyeurism as a Criminal Offence", the consultation paper prepared by the department of Justice in anticipation of the new legislation:
The rapid technological developments of recent years have brought many benefits to Canadian society, but they have also had implications for such basic matters as privacy and the role of the law. Web cameras, for example, which can transmit live images over the Internet, have raised concerns about the potential for abuse, notably the secret viewing or recording of citizens for sexual purposes or where the viewing or recording involves a serious breach of privacy. ...
There is currently no specific offence in the Criminal Code that addresses voyeurism or the distribution of voyeuristic materials. It is true that existing provisions of the Code apply in some cases of voyeurism, such as those that involve child pornography or trespassing at night. However, with the new technology, voyeurism itself may now involve a breach of privacy much greater than could have been foreseen when the Code was drafted – one that undermines basic notions of freedom and privacy found in a democratic society.
In effect, the trial judge found that the policy concerns which had motivated the creation of the offence were not engaged on the facts of this case.
In particular, the offence required that the accused be acting “surreptitiously” and that he infringe upon the complainant’s reasonable expectation of privacy, and the trial judge found that neither of these requirements were met. Although MW was not aware that her photograph was being taken, the accused was making no attempt to conceal his activities, his camera was not concealed or disguised, the presence of the stroller attracted rather than deflected attention, and the accused’s testimony that he was indifferent to whether other people saw him take photographs was not only uncontradicted but consistent with the facts. Further, although MW testified that she subjectively expected privacy, and although she was annoyed by the accused’s behavior in taking her photograph without permission, her expectation of privacy was not a reasonable one. The beach was a public one which was a clothing-optional one, there were no signs forbidding cameras or the taking of photographs, no City policy addressed the taking of photographs, and indeed many other people at the beach in addition to the accused were taking photographs on that day (including, ironically, MW herself at the time she was being photographed). Although there might have been some evidence that the accused’s behavior was a breach of etiquette and disappointing to some people, this was not the equivalent of a reasonable expectation of privacy. Accordingly the elements of the voyeurism offence were not made out, and for similar reasons the accused was also not guilty of mischief.