Heather’s Legal Summaries: R v Trinchi, 2019 ONCA 356

R v Trinchi is the most recent Ontario Court of Appeal decision in a string of cases related to the offence of voyeurism under s. 162(1) of the Criminal Code (see our previous post on the Supreme Court of Canada’s decision in R v Jarvis).

Two people in a long-distance romantic relationship engaged in an intimate webcam video chat. Both were naked, and both knew they were on video. One party, unbeknownst to the other, took a still photo of his partner from the live video stream. The Court of Appeal concluded that this type of conduct satisfies the requirements for the offence of voyeurism under s. 162(1) of the Criminal Code. 

Facts and Trial Decision

The appellant and the complainant were in a long-distance intimate relationship for a year and a half. They often engaged in Skype video conversations over the computer (“video chats”), during some of which the complainant would willingly appear nude before the computer in sexually provocative poses. On some of these occasions, the appellant would take and save screenshots of the naked complainant. The complainant testified that she knew her image was being captured as video and streamed over the Internet to the appellant, but that she did not know he was taking screenshots nor preserving them on his computer.

After the complainant ended the relationship, these screenshots were distributed via email to many people. The appellant was charged with six offences in relation to this conduct. He was also charged with voyeurism for taking the screenshots in the first place. The appellant was acquitted of the distribution charges but was convicted by trial judge of voyeurism for taking the screenshots.

The Offence of Voyeurism (s. 162(1) of the Criminal Code)

Section 162(1) of the Criminal Code has three components. The accused must 1) surreptitiously (secretly) 2) observe, including by mechanical or electronic means, or make a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, when 3) the person is nude, or exposing genitalia or their anal region or breasts, or is engaged in sexual activity; or the person is in a place where they can reasonably be expected to be doing any of those things; or when the observation or recording is done for a sexual purpose.

The Arguments on Appeal

On appeal, the appellant argued that that the complainant, having willingly posed nude in the video chat, knowing she was doing so before a camera, could not be said to have a reasonable expectation of privacy in the circumstances. He also argued that he cannot be found to have acted surreptitiously. Despite it being well-known that screenshots can readily capture any image on a computer monitor, the complainant never indicated she did not want screenshots taken and the appellant never said he would not take any. The appellant argued the voyeurism offence requires proof of the accused’s state of mind: specifically that he intended to act surreptitiously. He argued that the trial judge erred in law by finding he acted “surreptitiously” after considering the situation from the complainant’s perspective, instead of focusing on his state of mind.

The Appeal Decision

Reasonable Expectation of Privacy

The appellant attempted to distinguish from the holding in Jarvis by arguing that 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. He submitted that Parliament created the offence to apply to the electronic “peeping tom”, not to an intimate partner.

The Court of Appeal found this argument to be unpersuasive (para. 18 of Trinchi), drawing on part of the Jarvis decision, in which Wagner C.J. wrote at paragraph 38:

…a person who chooses to disrobe and engage in sexual activity with another person…necessarily expects to be observed by that other person while she is nude and engaging in that activity. Her privacy would nonetheless be violated if that other person, without her knowledge, video recorded the two of them engaging in the activity.

The Court of Appeal found this example to lead directly 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. — Trinchi, at para. 19

Upon a more in-depth analysis of the facts of the case, including the complainant’s subjective expectation as accepted by the trial judge and the reasonableness of that expectation, the appeal panel found that the complainant had a reasonable expectation of privacy in the circumstances. The exposure of intimate body parts in the privacy of a bedroom was found to attract a high expectation of privacy and a critical distinction between mere observation and the making of a permanent recording, the latter of which has the capacity to be redistributed amongst people not intended to view the image.

Surreptitiousness

There was previously little judicial interpretation of the meaning of “surreptitiously,” because whether the accused acted surreptitiously is usually a non-issue in voyeurism cases. As the Court of Appeal wrote at paragraph 41 of the decision, “in the typical voyeurism case, the accused is a third party who has used a hidden camera. The use of a hidden camera will generally establish surreptitiousness. In this case the complainant knew the accused was viewing her through a webcam.”

The Court of Appeal concluded, using statutory interpretation principles, that “surreptitiously,” in the context of the voyeurism offence, must be given its ordinary meaning. The Court was satisfied that the word includes intent as part of its meaning.

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.

The Court found that in a case in which the accused testifies, the determination of his mental state may “depend chiefly on whether he is believed or not.” Where the accused is not believed or does not testify, his state of mind may be based on evidence of secretiveness or stealth, or may be inferred from the relevant circumstantial evidence. Evidence that the complainant did not consent and was not aware the accused was recording her will be relevant circumstantial evidence. This, together with evidence that supports the finding the accused knew, or was wilfully blind, the complainant was unaware he was recording her, may well provide a compelling basis for the inference the accused intended the complainant remain unaware of his action. Also, as with inferring intent for any crime, the law presumes that a person intends the ordinary consequences of his voluntary acts.