Voyeurism and Video Sexting
Jarvis applied to screenshots made secretly during Skype chat
The Ontario Court of Appeal has further clarified the voyeurism offence in section 162(1) of the Criminal Code with its decision in R v Trinchi. In part the decision is an application of the recent Supreme Court decision on the same offence in R v Jarvis (and indeed the appeal was delayed until Jarvis had been decided), but the decision also goes on to settle a point which was not central to the decision in that other case.
Trinchi and his partner, the complainant, were in a long-distance relationship in the course of which they regularly engaged in intimate webcam video chats over the course of a year and a half. During the video chats both parties were nude, and the complainant willingly posed in sexually provocative positions for Trinchi. Trinchi took screenshots of her from these video livestreams: the complainant was aware that her image was being captured as video and streamed over the internet to Trinchi, but she was unaware that these screenshots were taken. After the complainant ended the relationship, these screenshots were widely distributed to many people by email, and as a result Trinchi was charged with a number of offences, most of which related to the distribution of intimate images. Because of the possibility that Trinchi’s new girlfriend had distributed the images, the trial judge had reasonable doubt and acquitted the accused of the distribution charges. However, the judge had no doubt that Trinchi had taken the screenshots and so convicted him of the voyeurism charge.
There are various versions of the voyeurism offence, but there was no dispute that the element set out in section 162(1)(b) was met, namely that
(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.
Similarly it was not disputed that the accused was the person who had taken the screenshots. However, the voyeurism offence has two further requirements: 1) that the complainant was “in circumstances that give rise to a reasonable expectation of privacy”, and 2) that the screenshot was made “surreptitiously”. Trinchi argued that neither of these elements were made out: the Ontario Court of Appeal disagreed and upheld the conviction.
Trinchi argued that the complainant could not have a reasonable expectation of privacy in the circumstances, having knowingly and willingly posed nude in front of the webcam. That is, he argued that although “engaging in sexual activity in one’s own bedroom is a circumstance that attracts a high expectation of privacy…the complainant admitted him within her circle of privacy by voluntarily exposing herself, knowing she was doing so through a camera, a device the very purpose of which is to capture images” (para 17). He argued that the voyeurism offence was designed to apply to “peeping toms,” not to intimate partners, and that the complainant’s act of voluntarily exposing herself in front of a camera negated her reasonable expectation of privacy.
In this context, however, the Ontario Court of Appeal relied on Jarvis, noting that the test for a reasonable expectation in the meaning of this section was “whether in the circumstances the person observed or recorded would reasonably expect not to be the subject of the type of observation or recording that in fact occurred” (para 14). They noted that Jarvis had offered, as an example, the possibility of one partner video-recording consensual sexual activity without the knowledge of the other, and held that that was essentially what had occurred here:
 This example, it seems to me, provides a short and direct path to the conclusion that the complainant had a reasonable expectation the appellant would not take screenshots of their consensual sexual activity. It should not make a difference that their consensual activity took place in “virtual space” rather than in a physical room. She necessarily expected to be observed by the appellant in the live-streamed video, but did not expect he would make a permanent recording of her naked.
The most notable consideration for the Court of Appeal was the distinction between mere observation and recording a permanent image. The making of a permanent image raises the risk of the complainant being observed by others than those by whom she was consenting to be seen, as in fact occurred in this case. On that basis the Ontario Court of Appeal found that the complainant did in fact have a reasonable expectation of privacy.
The remaining issue was whether the accused had acted “surreptitiously”, which was largely a matter of statutory interpretation. Trinchi argued that the complainant never indicated she did not want screenshots taken, and that he never promised he would not take screenshots. More importantly, though, Trinchi argued that the trial judge had applied the wrong test to determine surreptitiousness: it was a factor that had to be determined by looking at an accused’s intention, not from the complainant’s perspective. He argued that Jarvis had pointed to the difference between “reasonable expectation of privacy” and “surreptitiously”, and that the former focused on the complainant’s perspective, but the latter related to the observer.
The Crown argued, to the contrary, that it should be sufficient if a complainant did not know of the recording, and the accused was aware the complainant did not know: if there were a requirement to prove the accused’s intention, they argued, it would be too difficult to prove that an accused had acted “surreptitiously”.
On this matter of statutory interpretation, the Ontario Court of Appeal sided with Trinchi’s argument that it was necessary to prove that the accused intended that the complainant be unaware. They held:
 I am satisfied that the ordinary meaning of the word “surreptitiously” does include intent as part of its meaning. A person who observes or records with the intention that the subject not be aware that he is doing so, is attempting to avoid notice or attention. Moreover, I consider M.E.N.’s articulation of the mental element to be apt. The mental state required by the word “surreptitiously” in s. 162(1) is the intent the subject not be aware that she is being observed or recorded. In a prosecution under s. 162(1)(b), the Crown may prove the accused acted surreptitiously by proving that he observed or recorded the subject with the intention she be unaware he was doing so.
They also suggested that this definition was not likely to create the difficulties in proof suggested by the Crown:
 Understanding the word “surreptitiously” in this way would not prevent a successful prosecution in the Crown’s example of the smartphone on the accused’s bedside table recording consensual sexual activity. In the example, the accused would have had to initiate the smart phone’s video recording mode and position the device so its camera focused on the sexual activity. Where the complainant testifies that she did not consent to being recorded and was unaware the recording was being made, and without evidence to explain the positioning and active state of the phone, the fact-finder would have an adequate basis to infer that the accused intended the complainant be unaware he was recording her.
Essentially on that sort of basis the Ontario Court of Appeal concluded that surreptitiousness had been shown in this case. The trial judge had repeatedly stated that Trinchi had acted “secretly” and that his actions were “clandestine”. Further,
…The appellant’s state of mind could be inferred from the circumstantial evidence. The complainant did not know the screenshots were being taken. The appellant never told the complainant he was taking screenshots; the subject of taking screenshots never came up during the parties’ 400-odd video chats. The complainant could see the appellant during their video chats, and he had taken the screenshots in a way that the complainant had not noticed. After taking the screenshots the appellant never mentioned them. Her lack of awareness could also be reasonably expected under the totality of these circumstances. These facts supported the trial judge’s inference that the appellant had intended that the complainant not know he was taking screenshots of her.
Accordingly the conviction was upheld.