



WARNING

This appeal is subject to a mandatory publication ban
    under s. 278.95. This section of the

Criminal
    Code
provides:

278.95 (1)
A person shall not publish in any document, or broadcast or
    transmit in any way, any of the following:

(a)     the contents of
    an application made under subsection 278.93;

(b)     any evidence
    taken, the information given and the representations made at an application
    under section 278.93 or at a hearing under section 278.94;

(c)     the decision of
    a judge or justice under subsection 278.93(4), unless the judge or justice,
    after taking into account the complainants right of privacy and the interests
    of justice, orders that the decision may be published, broadcast or
    transmitted; and

(d) the determination made
    and the reasons provided under subsection 278.94(4), unless

(i)       that
    determination is that evidence is admissible, or

(ii)      the judge or
    justice, after taking into account the complainants right of privacy and the
    interests of justice, orders that the determination and reasons may be
    published, broadcast or transmitted.

(2)     Every person who
    contravenes subsection (1) is guilty of an offence punishable on summary
    conviction.




WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following
    offences;

(i)         an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)        any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)       REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by
    the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2),
    in proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of
    an offence other than an offence referred to in subsection (1), if the victim
    is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform
    the victim of their right to make an application for the order; and

(b) on application of the victim
    or the prosecutor, make the order.

(3)     In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss.
    22, 48; 2015, c. 13, s. 18.

486.6(1)       Every person who
    fails to comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Walsh, 2021 ONCA 43

DATE: 20210122

DOCKET: C66018 and C66552

Feldman, Gillese and Miller
    JJ.A.

DOCKET:
    C66018

BETWEEN

Her Majesty the Queen

Appellant

and

Patrick Walsh

Respondent

DOCKET: C66552

AND BETWEEN

Her Majesty the Queen

Respondent

and

Patrick Walsh

Appellant

Rebecca De Filippis, for the
    appellant/respondent Her Majesty the Queen

Philip Campbell, for the
    respondent/appellant Patrick Walsh

Heard by videoconference: October 6, 2020

On appeal from the acquittal entered on
    September 21, 2018, by Justice Kelly P. Byrne of the Superior Court of Justice,
    sitting with a jury.

On appeal from the conviction entered on
    September 28, 2018, by Justice Kelly P. Byrne of the Superior Court of Justice,
    sitting with a jury.

Gillese J.A.:

I.

OVERVIEW

[1]

The accused was charged with sexual assault
    arising from an incident that took place on May 12 - 13, 2016.

[2]

He was also charged, under s. 162.1 of the
Criminal Code
, R.S.C., 1985, c. C-46,
    with transmitting an intimate image without consent by making FaceTime calls
    to his friends in which he allegedly showed them the complainant while she was
    naked and vomiting in his bathroom. Under s. 162.1(2), intimate image means a visual
    recording of a person made by any means.

[3]

Sections 162.1(1) and (2) read as follows:

Publication, etc., of an
    intimate image without consent

162.1 (1) Everyone who
    knowingly publishes, distributes, transmits, sells, makes available or advertises
    an intimate image of a person knowing that the person depicted in the image did
    not give their consent to that conduct, or being reckless as to whether or not
    that person gave their consent to that conduct, is guilty

(a) of an indictable offence
    and liable to imprisonment for a term of not more than five years; or

(b) of an offence punishable
    on summary conviction.

Definition of intimate
    image

(2) In this section, 
intimate
    image
means a visual recording of a person made by any means
    including a photographic, film or video recording,

(a) in which the person is
    nude, is exposing his or her genital organs or anal region or her breasts or is
    engaged in explicit sexual activity;

(b) in respect of which, at
    the time of the recording, there were circumstances that gave rise to a
    reasonable expectation of privacy; and

(c) in respect of which the
    person depicted retains a reasonable expectation of privacy at the time the
    offence is committed.

[4]

The accused was tried by judge and jury.

[5]

At the close of the Crown case, the trial judge
    directed a verdict of acquittal on the s. 162.1 count. She concluded that a
    FaceTime video call is not a visual recording for the purposes of s. 162.1(2)
    because the images captured during the FaceTime call do not have the capability
    for reproduction. She stated that a FaceTime call might possess features that
    would amount to a recording but that evidence was not before her.

[6]

The jury returned a verdict of guilty on the sexual
    assault count.

[7]

The Crown appeals against the acquittal. The accused
    appeals against conviction. To avoid confusion, I refer to the parties
    throughout as the Crown and the accused.

[8]

For the reasons that follow, I would allow the
    appeal against acquittal and dismiss the appeal against conviction.

II.

BACKGROUND

[9]

The sexual assault count encompassed two alleged
    acts of sexual activity that took place on the night of May 12 - 13, 2016. At
    the time, the complainant was a student at a university in Toronto and the accused
    was a student at a university in Detroit but was living in Toronto for the
    summer.

[10]

The accused and the complainant met briefly
    about a year before the incident giving rise to these appeals, when the
    complainant went to a party the accused was hosting at his condominium. They
    did not see each other again until the night in question.

[11]

On the evening of May 12, 2016, the complainant
    and the accused ran into each other at a bar in Toronto where the complainant
    was celebrating her birthday. The accused approached the complainant and said
    that he recognized her. They started talking and he invited the complainant to
    his mothers nearby condominium (a different condominium than where they first
    met). They walked there together, were kissing, and quickly moved to the
    bedroom where the complainant undressed, with the help of the accused.

[12]

The complainant testified that the accused pushed
    her head to his groin, forcing her to perform oral sex on him, after which he began
    to penetrate her vagina, to which she repeatedly said no.

[13]

The accused testified that the complainant
    initiated the oral sex. He denied forcing her head and said that the oral sex
    was consensual. He said he then asked her if she wanted him to get a condom, she
    did not reply, and they continued kissing. The accused maintains that no
    intercourse occurred.

[14]

Both agree that the accused was on top of the
    complainant when she told him she was going to be sick. He allowed her to get
    up and go to the bathroom where she began throwing up into the toilet.

[15]

The complainant testified that while she was naked
    and had her head pretty much buried in the toilet, she heard a chiming sound
    that she knew signalled a FaceTime call. She had owned an iPhone for several
    years and knew what FaceTime was and what the FaceTime chime sounds like. She looked
    up and saw the accused pointing his cellphone at her and heard someone talking
    on the other end of the call. She heard the accused say something to the effect
    of look at this and understood, from the conversation between the accused and
    the others on the call, that they were making fun of her. She also heard laughing
    on both ends of the call. She felt scared by what had just happened and even
    more scared because others could see her in the bathroom, naked and vomiting, and
    she knew they could take a screenshot or record what was happening. She said, with
    the internet nowadays, like anyone could see that.

[16]

The complainant heard the accused walk away and
    then she heard another FaceTime chime. The accused returned to the bathroom and
    had another FaceTime call while pointing his cellphone at her.

[17]

The accuseds cell phone records were entered as
    exhibits at trial. Those records showed that three FaceTime calls were made on his
    cell phone between 12:54 a.m. and 1:01 a.m. on May 13, 2016. All three calls
    were made to friends of the accused. The first call lasted 1 minute and 36
    seconds; the second call lasted 0 seconds; and the third call lasted 5 minutes
    and 17 seconds. The accused testified that he called three of his friends in
    the United States to get their advice.

[18]

Detective Constable Angus from the Tech Crimes
    Unit of the Toronto Police Service, one of the investigating officers,
    testified at trial. He explained that he was familiar with iPhones, has had an
    iPhone since they were first released, and was familiar with the FaceTime
    application. He was not qualified as an expert before giving his evidence.

[19]

DC Angus had examined the accuseds cell phone
    and extracted some data from it. He first explained how an extraction report
    sorts FaceTime calls. He then explained the FaceTime application itself. He
    described FaceTime as a video-calling platform or video messaging, and that those
    engaged in the FaceTime call see one another. He said, so, much like a phone
    call, its like a video phone call.

[20]

DC Angus also explained how the cameras on the
    phones are used in a FaceTime application.

So every iPhone has front and back cameras. So
    when you are in the FaceTime application, you can choose which camera video
    feed youre sending to the other person. So you can pick the selfie camera []
    so the person on the other end can see you and you can see them on the screen.
    Or you can choose the back camera, so they can see whatever you are pointing your
    phone at and you can still see the person you are communicating with.

III.

TRIAL RULINGS

[21]

Three of the trial judges rulings are challenged
    in these appeals: her direction that a verdict of acquittal be entered on the
    s. 162.1 charge; her ruling on the defence s. 276 application
[1]
; and her disposition of
    defence objections to the Crown closing. Each of the rulings is discussed
    below.

A. The Directed Verdict of Acquittal on the
    s. 162.1 Charge

1.
The Parties Positions at Trial

[22]

After the Crown closed its case, defence counsel
    brought an application for a directed verdict on the s. 162.1 count. He asserted
    that for the Crown to obtain a conviction under s. 162.1, the Crown had to show
    that the accused (1) knowingly disseminated (2) an intimate image of a person (3)
    while knowing or being reckless as to whether that person gave their consent to
    the dissemination. He argued that the Crown could not meet its burden on the
    second point  the existence of an intimate image. He contended that a
    successful prosecution required proof that the image was a recording and that
    the common meaning of recording is something that has been committed to a form
    where it can be reviewed, referred to or reproduced at a later time, something
    with a degree of permanence.

[23]

The Crown argued that recording must be read
    in the context of the harm that s. 162.1 was enacted to address: sexual exploitation
    committed through technology, including cyberbullying and revenge porn. It
    maintained that this harm occurs when an image of an intimate moment is shared
    without the complainants consent and that the recipients inability to further
    share or preserve the moment does not negate the harm or diminish the senders
    culpability. Moreover, the Crown argued, there was sufficient evidence that
    FaceTime calls were capable of reproduction because the complainant testified
    that recipients of the FaceTime call could have taken a screenshot of the call.

2.
The Trial Judges Ruling

[24]

The trial judge gave the following reasons for
    allowing the application and directing a verdict of acquittal on the s. 162.1
    count.

[25]

The issue on the application was whether a FaceTime
    call amounts to a visual recording as set out in s. 162.1(2). The trial judge
    said that the ordinary common-sense definition of visual recording is any
    image captured on any device, electronic or otherwise, that has the capability
    for reproduction. While there was no dispute that a FaceTime call is visual,
    the trial judge stated that she had difficulty with the absence of evidence regarding
    the recording component. She listed the three sources of evidence on that
    matter: that of the complainant; the accuseds cell phone records which showed that
    he made three FaceTime calls on his cellphone at a time closely connected to
    the allegations; and, the evidence of DC Angus.

[26]

The trial judge described the complainants
    testimony as follows: she saw the accused pointing a cellphone at her while she
    was naked and vomiting into the toilet in his bathroom; she heard laughing and
    someone other than the accused speaking; and she heard a chiming sound that she
    associated with a FaceTime call.

[27]

The trial judge summarized DC Anguss evidence
    as: FaceTime is a video-calling platform; each persons phone has a camera; and
    the sender and recipient can see each other on video. She noted his description
    of FaceTime as a video phone call and his view that using FaceTime is as easy
    as making a traditional phone call.

[28]

The judge then stated:

The only evidence I have available to me is
    that a FaceTime call is identical to a phone call with the added component of
    an image. A phone call is a live real-time auditory transmission to another
    person. It is not a recording. A FaceTime call is also a live real-time
    transmission to another person, with both an auditory and a visual component.

[29]

The trial judge added that it may be that a
    FaceTime call possesses additional features in its transmission or in the
    capturing of images that would amount to a recording, but that evidence was not
    before her. She stated that she was not prepared to take judicial notice of the
    technical workings and application of a FaceTime call. She concluded that the deficiency
    in the evidence was a fatal flaw and that a directed verdict had to follow.

B.      Ruling on the s. 276 Application

In light
    of the mandatory ban on publication contained in s. 278.95 of the Criminal
    Code, paragraphs 30 to 35 have been redacted from the public version of this
    decision.

C.      Defence Objections to the Crown Closing

1.
Background

[36]

In her statement to the police, the complainant
    said that the accused had sex with her without her consent. She did not tell
    the police that she was forced to perform oral sex. She mentioned the oral sex
    for the first time during cross-examination at the preliminary inquiry. During that
    cross-examination, the complainant said that other things happened that
    night. When asked if she was referring to other sexual acts, she responded
    just sex then. Yeah, penetration. A short time later, defence counsel asked
    again about her statement that other things had happened. In the series of
    questions that followed, the complainant said that she was forced to go down
    on the accused  like my head kind of being grabbed and pushed and thats
    where I was kind of like  and yeah, but I didnt say no at that point.

[37]

At trial, defence counsel cross-examined the
    complainant on her failure to mention the oral sex in her police interview. In his
    cross-examination, he put parts of the preliminary inquiry transcripts to her.
    She explained that she had not mentioned the oral sex earlier because she was
    uncomfortable talking about sexual acts in a courtroom and it was hard for her
    to think about what happened. She also said she thought she should focus on the
    acts to which she explicitly said no and testified that only later did she
    realise that she did not have to say no out loud for an act to constitute
    sexual assault.

[38]

Both defence counsel and the trial Crown
    referred to the complainants evidence at the preliminary inquiry in their
    closing submissions.

[39]

In his closing submissions, defence counsel
    reviewed the parts of the preliminary inquiry transcript that he had put to the
    complainant in cross-examination and argued that her answers and her late
    disclosure of the oral sex demonstrated that she could not be trusted. He described
    her answers as profoundly dishonest and her explanation for the inconsistency
    as self-serving. He argued that the complainants late disclosure of the oral
    sex was a sign that her evidence at trial could not be trusted.

[40]

The trial Crown objected to the defence
    counsels emphasis on the preliminary inquiry transcripts in his closing
    submissions. She stated that the preliminary inquiry transcripts were not
    evidence and said that they had not been read in chronological order. She also said
    that defence counsel had added tone and emphasis to which the transcript could
    not speak. She asked the trial judge for an instruction on the tone and
    intonation that defence counsel had added to his reading of the preliminary
    inquiry transcripts. The trial judge replied that the Crown could make that
    argument before the jury. Defence counsel did not object.

[41]

In her closing submissions, the trial Crown
    urged the jury not to place undue weight on the complainants evidence at the
    preliminary inquiry. She acknowledged that the complainant had failed to
    mention the oral sex until her cross-examination at the preliminary inquiry but
    argued that the circumstances of the complainants disclosure were
    understandable and did not undermine her credibility.

[42]

The trial Crown then said the following.

Now, I want to go to the inconsistency that my
    friend raises about oral sex in the prelim transcripts. You have to be very
    careful about that material.

First of all, [the complainant] testified in
    front of you, and you could look at her demeanour, she testified that that was
    one answer at the preliminary inquiry that was taken out of context.  She had
    already alluded to the other sexual act earlier in her testimony. She explained
    she was alluding to it when she stated No, no, never mind. It was just
    penetration. Again, while that might not have been the most eloquent account
    or her account might not have flowed seamlessly thats not a signifier of
    deceit. Instead, as she explained to you, its a reflection of the reality of
    recounting a highly personal sexual trauma in a courtroom setting.
Plus, my
    friend has read you the  parts of the transcript, not in chronological order,
    and that testimony is not evidence before you.

It is incomplete. He
    adds his own tone. We all add tone to things. That gives it character. Hes
    adding that to the transcript.

You cannot tell  this is why we dont rely on
    transcript  on prelim transcripts as evidence.  You cannot tell her demeanour
    when she is giving that evidence. You dont know if shes crying when shes
    saying that. You dont know if shes breaking down when shes saying that. You
    dont know if shes completely disassociated because you didnt see her testify
    at the prelim. You did not see her testify for the first time. So, nuanced
    pauses, crying, is lost when my friend reads in prelim transcripts with his own
    tone.  [Emphasis added.]

[43]

Defence counsel objected to two aspects of the
    trial Crown closing.

2.
Defence
    Counsels First Objection

[44]

Defence counsels first objection was to that
    part of trial Crowns closing submission in which she said that, in his closing
    submission, he had read parts of the transcript not in chronological order
    (the First Impugned Comment). He said that the First Impugned Comment left
    the jury with the impression that he had not gone through the preliminary
    inquiry transcripts in chronological order when he had. He argued that this gave
    the jury the impression that he was somehow deceiving them.

[45]

The trial judge said that, on her reading of the
    preliminary inquiry transcript, there was an issue with the chronology and that,
    while he was entitled to use the transcript in asking the complainant
    questions, she did not think she could say his use of it was absolutely in
    chronological order. She said she thought defence counsel used it topically
    in chronological order but that was not necessarily how the preliminary inquiry
    transcript read. Defence counsel agreed that in cross-examination he jumped back
    and forth in questioning and it was not chronological. (In fact, he was
    mistaken on this point because he did put the preliminary inquiry transcripts
    to the complainant in chronological order.)  But, he argued, when he went
    through the preliminary inquiry transcript in his closing submissions, he did
    so in chronological order.

[46]

The trial judge concluded that it would be
    unfair to tell the jury that defence counsel read excerpts from the preliminary
    inquiry transcript in chronological order without also telling the jury that
    the excerpts had not been put to the complainant in chronological order. She described
    the First Impugned Comment as an incredibly minor point. She also stated that:
    diving into [the First Impugned Comment] would only serve to distract the
    jury; she did not find that the First Impugned Comment negatively reflected on
    defence counsel; and she wasnt sure that it required a correction. If a
    correction was needed, the trial judge said that it had to be balanced, with a
    focus on the evidence.

[47]

The trial judge ruled on the First Impugned
    Comment, saying:

I have thought about your request to add an
    instruction to the jury to correct what you believe was an inappropriate
    comment by the Crown when she suggested to the jury that the prelim evidence
    was not in chronological order. I'm of the view that if I instruct the jury in
    that way, that it would also necessitate then a comment on your
    cross-examination of the complainant and indicate to them, that that was not in
    chronological order, despite the fact that what was read to them, which is not
    evidence, was in chronological order. But my understanding is you don't want
    that charge put to them.

[48]

Defence counsel answered, Thats correct.

3.
Defence
    Counsels Second Objection

[49]

Defence counsels second objection related to
    the Crowns comments about the complainants emotional state when testifying at
    the preliminary inquiry (the Second Impugned Comment). He acknowledged that
    the Crown was on good footing when she said that a witness demeanour is lost
    when you look at the preliminary inquiry transcripts but said she went too far
    when she said the crying was lost because there was no evidence that the
    complainant had been crying.

[50]

The trial judge dismissed the second objection,
    saying;

I think you take it out of context, because what
    I recall of the Crown's closing was that that was in a context of you don't
    know what the demeanour was. You don't know if there was crying. You don't know
    if there were pauses, you don't know. So I don't think it was just, look, she
    was crying and you didn't hear it. That's not the takeaway that I took. [] I
    think if you cherry pick it out of the totality of her submissions, yes, but I
    think you can't do that. I think you have to look at the context in which it
    was given, and it was given in this whole section of here's what you don't
    know, and just - you got to know what you don't know. [] that's the way I
    heard it. [] I don't think that the jury's going to misunderstand that.

IV.

THE GROUNDS OF APPEAL

A.      The
    Appeal against Acquittal

[51]

The Crown appeal against acquittal rests on a
    single ground: did the trial judge err in her interpretation of recording in
    s. 162.1(2)?

B.      The
    Appeal against Conviction

[52]

The accused raises three grounds of appeal
    against conviction. He submits that the trial judge:

1.  erred in failing to address the defence objections to the
    Crowns closing submissions;

2.  erred in instructing the
    jury that

Consent is the voluntary agreement of [the
    complainant] to take part in the sexual activity that she said happened. In
    other words, [the complainant]
wanted

[the accused] to do what he
    did. [Emphasis added]; and

3.  improperly ruled on the s.
    276 application.

V.

THE APPEAL AGAINST ACQUITTAL

[53]

For ease of reference, I set out ss. 162.1(1)
    and (2) again below.

Publication, etc., of an
    intimate image without consent

162.1 (1) Everyone who
    knowingly publishes, distributes, transmits, sells, makes available or
    advertises an intimate image of a person knowing that the person depicted in
    the image did not give their consent to that conduct, or being reckless as to
    whether or not that person gave their consent to that conduct, is guilty

(a) of an indictable offence
    and liable to imprisonment for a term of not more than five years; or

(b) of an offence punishable
    on summary conviction.

Definition of intimate
    image

(2) In this section, intimate
    image means a visual recording of a person made by any means including a
    photographic, film or video recording,

(a) in which the person is
    nude, is exposing his or her genital organs or anal region or her breasts or is
    engaged in explicit sexual activity;

(b) in respect of which, at
    the time of the recording, there were circumstances that gave rise to a
    reasonable expectation of privacy; and

(c) in respect of which the
    person depicted retains a reasonable expectation of privacy at the time the
    offence is committed.

A.      The Parties Positions

1.
The Crowns Position

[54]

The Crown makes two overriding submissions on
    this issue.

[55]

First, the Crown says that the trial judge erred
    in law by interpreting recording in s. 162.1(2) as requiring proof that the
    image captured by the device is capable of reproduction. Based on the text of
    s. 162.1, it argues that recording should be interpreted as any visual
    display created by any means. It says that s. 162.1 was enacted to modernize
    the
Criminal Code

and criminalize sexual exploitation committed
    through technology. Further, it says that Parliament carefully circumscribed
    the parameters of the offence in s. 162.1(2)(a)-(c) based on that purpose: to
    make it criminal to share, by any means, an image without the subjects
    consent, if that image is sexually explicit and engages the subjects
    reasonable expectation of privacy. It contends that it is the content of the
    image that matters, not the medium used to share the image.

[56]

Second, the Crown submits that the trial judge
    erred in finding that there was no evidence on how an iPhone works. It says
    that, contrary to the trial judges view, the evidence of the complainant and
    DC Angus was sufficient and there was no need for the Crown to call expert
    evidence about how iPhones or FaceTime work, or to prove that the FaceTime images
    were capable of reproduction.

2.
The Accuseds Position

[57]

The accused submits that the plain meaning of
    recording implies the creation of an image that can be stored, viewed later, and
    reproduced. This, he contends, excludes evanescent images that are
    transmitted and viewed a single time and are thereafter unavailable. He
    contends that to record something is to capture an event that happens at a
    point in time and to preserve it in a more lasting form. He argues that the
    Crowns interpretation of recording sidesteps its essential meaning which is
    that an event is preserved and available for later viewing. He points to the
    trial judges comparison of a FaceTime call with a phone call to illustrate this,
    and says that no one thinks of a phone call as a recording.

B.
Analysis

[58]

In my view, the trial judge erred in her interpretation
    of recording in s. 162.1(2) and in her approach to the sufficiency of the evidence.

1.
The meaning of recording in s. 162.1(2)

[59]

It is trite law that the modern approach to
    statutory interpretation requires that the words of an
Act
must be
    read in their entire context, in their grammatical and ordinary sense
    harmoniously with the scheme of the
Act
, the object of the
Act
,
    and the intention of Parliament:
Bell ExpressVu Ltd. Partnership v. Rex
,
    2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.

[60]

The starting point is to determine the ordinary
    meaning of the text:
R. v. Wookey
, 2016 ONCA 611, 531 O.A.C. 13, at
    para. 24. At para. 25 of
Wookey,
quoting from
Ruth Sullivan,
Sullivan on the Construction of Statutes
,
6th ed.
(Markham,
    Ont.: LexisNexis Canada, 2014)
,
Pharmascience
    Inc. v. Binet
, 2006 SCC 48, [2006] 2 S.C.R. 513, at para.
30, and
Canadian Pacific Air Lines Ltd. v. Canadian Air Line
    Pilots Assn.
, [1993] 3 S.C.R. 724, at p. 735,
this
    court states that ordinary meaning refers to the readers first impression
    meaning, the understanding that spontaneously comes to mind when words are read
    in their immediate context and is the natural meaning which appears when the
    provision is simply read through. In other words, the plain or ordinary
    meaning of a word is not dictated by its dictionary meaning nor is it frozen in
    time.

[61]

What, then, is the ordinary meaning of the text
    of ss. 162.1(1) and (2)? Section 162.1(1) makes it an offence for a person to knowingly
    disseminate an intimate image of a person without their consent. Section
    162.1(2) provides that intimate image means a visual recording of a person
    made by any means including a photographic, film or video recording.

[62]

On a plain reading of ss. 162.1(1) and (2), it
    appears to me that the non-consensual visual sharing of an intimate image is
    prohibited  regardless of whether the intimate image being shared has the capability
    of reproduction. Further, the natural or ordinary meaning of visual recording
    includes a FaceTime call.

[63]

My plain reading of these provisions begins with
    the observation that with traditional technology, such as a camera, the capture
    and display of the visual image are separate acts. But, with a livestream
    application such as FaceTime, the two are simultaneous. Livestream transmissions
    enable a caller to capture visuals (i.e. record intimate images) and share them
    simultaneously. Thus, a FaceTime call in which the callers iPhone is pointed
    at a person is a visual recording of that person, within the meaning of s.
    162.1(2), because that persons image is captured on the callers phone and transmitted
    to the recipients screen where it is displayed. How could the recipient
    observe the person if that persons image had not been recorded and transmitted
    to them? It matters not whether the recipient reproduces the persons image or
    could reproduce it; the recipient has seen the persons image because the caller
    recorded it and sent it to them. Thus, the FaceTime call is the visual recording
    of the person.

[64]

In times gone by, the word recording may have
    been confined to visuals that could be reproduced and viewed at a later time or
    place. Photographs and videotapes are examples of that. However, five
    considerations militate against such a restrictive interpretation of
    recording in s. 162.1(2).

[65]

First, the language of s. 162.1 is intentionally
    broad. Section 162.1(1) prohibits a wide range of conduct, both overt acts of
    dissemination (i.e. publishes, distributes, transmits, sells) and the
    facilitation of acts of dissemination (makes available or advertises). And, s.
    162.1(2) provides that a visual recording of a person can be made by any means.

[66]

Second, FaceTime calls are directly caught by
    the language of s. 162.1(2), in which intimate image is defined to mean a
visual
    recording
including  a
video recording
 (emphasis added). As I
    have just explained, in a FaceTime call where the caller focuses the camera in
    their iPhone on a person, the caller is transmitting a video recording of that
    person to the recipient of the call.

[67]

Third, there is nothing in s. 162.1 to suggest
    that the intimate image being shared must be capable of reproduction. The harm
    is in the non-consensual sharing of an intimate image  regardless of whether
    the recipient of the recording (call) reproduces it or can reproduce it. Even
    if there are no copies and no opportunity to make them, as the sentencing court
    observed in
R. v. J.B.
, 2018 ONSC

4726, at para. 44, the act of
    sharing the images in the first place is an attack on the victims privacy,
    basic human dignity, and sense of self-worth.

[68]

Fourth, restricting the meaning of recording to
    outdated technology  by requiring that it be capable of reproduction  would
    fail to respond to the ways in which modern technology permits sexual
    exploitation through the non-consensual sharing of intimate images. In so doing,
    it would undermine the objects of s. 162.1 and the intention of Parliament in
    enacting it.

[69]

Section 162.1 is a relatively new offence. It came
    into effect as part of Bill c-13,
Protecting
    Canadians from Online Crime
, enacted in 2014 and proclaimed
    into force on March 9, 2015. The bill  part of the federal governments
    initiative against cyber-bullying  was introduced when two young women tragically
    took their lives after intimate images of them had been shared online without
    their consent. These cases and others highlighted the growing trend to use
    technology as a tool of harassment and sexual exploitation, and the justice
    systems inability to respond because no offence existed at that time which addressed
    that type of conduct.
[2]

[70]

Sexual offences are enacted to protect personal
    autonomy and sexual integrity of the person:
R. v.
    Jarvis
, 2019 SCC 10, at para. 122. Giving visual
    recording a
broad and inclusive
interpretation best accords with the objects of s. 162.1 and Parliaments
    intention in enacting it.

[71]

Finally, I accept the Crowns submission that
    the trial judges interpretation of s. 162.1 would base culpability on the medium
    used to share the intimate image, rather than on whether the conduct breached
    the victims sexual integrity and privacy. This, it submits, would lead to
    arbitrary and unreasonable distinctions. I agree. The following example
    demonstrates this.
A person who takes a picture of a
    naked woman in a changeroom and gives the photo to one friend would be guilty
    of an offence under s. 162.1. However, if that person livestreamed the image of
    the woman on a website where it can be viewed an indefinite number of times by
    an indefinite number of people but never saved, on the trial judges
    interpretation, the person would not be guilty of an offence under s. 162.1.

[72]

In conclusion, applying the modern principles of
    statutory interpretation, ss. 162.1(1) and (2) make it an offence to knowingly
    publish, distribute, transmit, sell, make available or advertise an intimate
    image of a person, without the persons consent. Intimate image means a visual
    recording of a person made by any means. Interpreting visual recording broadly
    and in a common-sense and purposive manner, prohibits the non-consensual visual
    sharing of an image, if the image is sexually explicit and engages the
    subjects reasonable expectation of privacy. The ordinary meaning of visual recording
    does not require proof that the intimate image that was shared is capable of
    reproduction. Thus, a FaceTime call is captured by s. 162.1.

[73]

In reaching this conclusion, I reject my
    colleagues analysis based on the voyeurism offence in s. 162 of the
Criminal Code
. He suggests that the
    accused could have been held answerable under that provision. I disagree.
    Section 162 applies when one person surreptitiously observes or makes a
    visual recording of another, in certain circumstances. There is nothing surreptitious
    about the accuseds alleged act of livestreaming images of the complainant as
    she vomited into a toilet, while naked. She was fully aware that the accused
    was pointing his iPhone at her and making a FaceTime call. She was simply too
    ill at the time to be able to leave the toilet.

[74]

I respond also to my colleagues suggestion that
    we are to infer, based on the wording of s. 162, that Parliament used the word
    recording in s. 162.1(2) with the deliberate intention of excluding
    livestreaming. There is no basis for such an inference. First, Parliament would
    have no discernible purpose for excluding livestreaming from the offence.
    Second, this suggestion fails to consider the word recording within the
    context of each of the two provisions. In s. 162, the offence is the
    surreptitious observation or visual recording of a person in certain
    circumstances. In s. 162.1, the offence is the non-consensual sharing of an
    intimate image, where intimate image means a visual recording of a person made
    by any means. It is a false dichotomy to suggest that because Parliament
    provides two methods of committing the offence in s. 162, it could not have
    intended that the digital recording of an intimate image through a FaceTime
    transmission was a visual recording for the purposes of s. 162.1. As I explain
    above, a FaceTime call falls within the meaning of visual recording in s.
    162.1(2).

2.
Sufficiency of the Evidence

[75]

The trial judge said that there was an absence
    of evidence before her about how a FaceTime call captures images that would
    amount to a recording within the meaning of s. 162.1(2). She also stated that
    despite the ubiquitous nature of iPhones she was not prepared to take
    judicial notice about the technical workings and application of a FaceTime call.
    I do not agree with either statement.

[76]

There was evidence before the trial judge about
    how a FaceTime call works. Both the complainant and DC Angus gave evidence on
    this. They indicated that a FaceTime call allows a person to film their
    surroundings and transmit those images, instantaneously, to the recipients of
    the FaceTime call, who are then able to view the images. I would add that DC
    Angus did not testify, as the trial judge indicated, that a FaceTime call is
    identical to a telephone call except that it has a visual component, as well
    as an auditory one. He did make the comment that a FaceTime call is like a
    phone call with a video component. However, he made that comment in the
    context of explaining the ease with which FaceTime calls can be made. In his
    testimony, DC Angus was very clear that, in a FaceTime call, the caller can
    choose to show the recipient whatever the caller points their back camera at.
    Self-evidently, the ability to show others what is going on around you makes a
    FaceTime call significantly different than a telephone call.

[77]

There was no need for additional evidence and
    certainly not that of experts. In saying this, I rely on
R. v. Mohan
, [1994] 2 S.C.R. 9, at pp.
    23-24, in which the Supreme Court explains the necessity pre-condition for the
    admission of expert evidence. The Court said that expert evidence is necessary
    when it provides information likely to be outside the experience and knowledge
    of a judge or jury and that information is needed to enable the trier of fact
    to appreciate the matters in issue due to their technical nature. In short, as
    the Court stated, expert evidence is necessary on matters ordinary people are
    unlikely to form a correct judgment about, if unassisted by persons with
    specialized knowledge.

[78]

The general functioning of iPhones today is not
    the stuff of experts. iPhone users can explain what applications are and what
    use they make of them. And the triers of fact do not need the assistance of persons
    with specialized knowledge in order to form correct judgments on matters
    relating to video messaging applications such as FaceTime. The fact that
    FaceTime sends and receives video images is uncontroversial. So, too, is the capability
    of the recipient of a FaceTime call to take and print out a screen shot: see,
    for example,
Sylvestre v. Sylvestre
, 2018 SKQB 105, at para. 16.

[79]

The only question in this case was whether there
    was sufficient evidence for the jury to conclude that the accused, in one or more
    of the FaceTime calls, made available to the recipient of the call or calls,
    the image of the complainant while she was naked and vomiting in the toilet. In
    my view, there was and the matter should have gone to the jury.

[80]

Accordingly, I would allow the appeal against
    acquittal, set aside the order for a directed acquittal, and order a new trial
    on the count of dissemination of intimate images contrary to s. 162.1 of the
Criminal Code
.

VI.

THE APPEAL AGAINST CONVICTION

Issue #1      No
    error in the trial judges treatment of defence objections to Crowns closing submissions

A.      The Parties
    Positions

1.
The Accuseds Position

[81]

It will be recalled that, at trial, the defence
    objected to two comments in the trial Crowns closing submissions. The First Impugned
    Comment was the trial Crowns comment that, in his closing submissions, defence
    counsel read parts of the preliminary inquiry transcript not in chronological order.
    The Second Impugned Comment was that the jurors were not in a position to
    assess the nuances of the complainants state when testifying at the
    preliminary inquiry, including whether she was crying, breaking down, or
    completely disassociated. The trial judge did not give a correcting
    instruction on either impugned comment.

[82]

Before this court, the accused seeks a new trial
    on the basis that the trial judge erred in law in failing to give a corrective
    instruction for those comments.

[83]

In respect of the First Impugned Comment, the accused
    submits that the trial judges ruling was unfair to him because it left
    uncorrected the Crowns implicit denigration of defence counsels fairness to
    the complainant. And, he says, the First Impugned Comment was factually
    incorrect because defence counsel had, in fact, questioned the complainant in
    the sequence in which her story had emerged at the preliminary inquiry.

[84]

The accused submits that the trial judges
    ruling on the Second Impugned Comment was incorrect because, without an
    evidentiary foundation for such a claim, the Crown had no right to claim that
    the complainant could have been crying, breaking down or completely
    disassociated when she gave her evidence at the preliminary inquiry.

2.
The Crowns Position

[85]

In respect of the First Impugned Comment, the Crown
    submits that it did not, expressly or by implication, suggest that defence
    counsel had been unfair or misleading. At most, the Crown says, the First Impugned
    Comment contained one factual inaccuracy, namely, that defence counsel read
    parts of the preliminary inquiry transcript out of chronological order. The
    Crown says this minor misstatement  which was not inflammatory or demeaning 
    did not require a corrective instruction and did not cause any prejudice to the
    accused.

[86]

In relation to the Second Impugned Comment, the
    Crown submits that it did not invite the jury to speculate on the complainants
    emotional state. She says that the comment was made as part of the trial
    Crowns direction to the jury to afford the complainants preliminary inquiry testimony
    minimal weight and, further, that it was a fair response to the accuseds arguments
    that the complainant should be disbelieved because of her testimony at the
    preliminary inquiry.

B.      Analysis

[87]

I would reject this ground of appeal. In my
    view, the trial judge made no error in her treatment of the impugned comments.
    Neither of those comments deprived the accused of a fair trial.

1.
The
    Governing Legal Principles

[88]

The following points provide the necessary
    structure for assessing this ground of appeal.

[89]

First, in
R. v.
    Manasseri
,
2016
    ONCA 703, 132 O.R. (3d) 401, leave to appeal to S.C.C. refused, 37322 (April
    13, 2017), at paras. 103-106, this court said the following about Crown
    counsels closing submissions in a jury trial:

1.
the Crown is entitled to advance its case
    forcefully but, in doing so, must eschew inflammatory rhetoric, demeaning
    commentary, sarcasm, and legally impermissible submissions that undermine trial
    fairness;

2.
the Crown must limit its means of
    persuasion to facts found in the evidence adduced before the jury; and

3.
the Crown is expected to be rigorous but
    fair, persuasive, and responsible.

[90]

Second, when complaints are made that the
    Crowns closing submissions exceeded permissible limits, the critical issue is
    whether what was said deprived the accused of a fair trial. To determine this
    issue, an appellate court must consider the impugned comments in the milieu in
    which they were said and the context of the entire trial, as well as any
    judicial response to them:
Manasseri
, at para. 106.

[91]

Third, the trial judge does not have an
    inflexible obligation to correct every misstatement of the evidence by counsel:
R. v. Jones
, 2011 ONCA
    584, 277 C.C.C. (3d) 143, at para. 38.

2.
The
    First Impugned Comment

[92]

Before placing the First Impugned Comment in
    context, I note that any inaccuracy in it was entirely inadvertent on the part
    of the Crown. This can be seen by considering the exchange between the trial
    judge and defence counsel after he objected to the First Impugned Comment.

[93]

In the to and fro following defence counsels
    objection, the trial judge said that defence counsel had put the preliminary
    inquiry transcripts to the complainant out of order (as he was entitled to).
    Defence counsel agreed, saying he had jumped back and forth in his
    cross-examination. As it turned out, defence counsel had put the transcripts to
    the complainant in chronological order and he also read the parts of the preliminary
    inquiry transcript in chronological order in his closing submissions. However,
    when the trial judge made her ruling on the First Impugned Comment, it was on
    the mistaken understanding  shared by defence counsel  that, during
    cross-examination, he put the preliminary inquiry transcript to the complainant
    out of order.

[94]

With that shared misunderstanding in mind, the
    trial judge ruled that if she were to give a corrective instruction to the jury
    and tell them that defence counsel had read from the preliminary inquiry
    transcript in chronological order, she would also tell the jury that those
    transcripts had not been put to the complainant in chronological order. As the trial
    judge explained, she felt such an instruction was necessary for it to be
    balanced and to keep the jury focussed on the evidence. Defence counsel
    resisted that qualification in the proposed corrective instruction. Consequently,
    the trial judge did not give the correcting instruction.

[95]

It is important to also consider the First Impugned
    Comment in context. Both defence counsel and the trial Crown referred to the
    complainants evidence at the preliminary inquiry in their closing submissions.
    Defence counsel reviewed the parts of the preliminary inquiry transcript that
    had been put to the complainant in cross-examination and described her answers
    as profoundly dishonest and her explanation for the inconsistency as self-serving.
    He argued that the complainants late disclosure of the oral sex was a sign
    that her evidence at trial could not be trusted.

[96]

In her closing submissions, the trial Crown
    urged the jury not to place undue weight on the complainants evidence at the
    preliminary inquiry. She acknowledged that the complainant had failed to
    mention the oral sex until her cross-examination at the preliminary inquiry but
    argued the circumstances of the complainants disclosure were understandable
    and did not undermine her credibility.

[97]

It is within this context that the trial judge found
    the First Impugned Comment to be an incredibly minor point. In her view, diving
    into it would only serve to distract the jury. Further, she stated, the First
    Impugned Comment did not negatively reflect on defence counsel and did not
    warrant a correcting instruction. I agree with the trial judge on all these
    points.

[98]

The First Impugned Comment was not inflammatory
    or demeaning, and caused no prejudice to the accused. It was a minor factual
    inaccuracy made within the context of a valid point: that excerpts from a
    transcript do not tell a complete story and that what mattered was the
    complainants explanation of the inconsistency at trial.

3.
The
    Second Impugned Comment

[99]

The trial judge dismissed the defence objection
    to the Second Impugned Comment on the basis that defence counsel had cherry
    picked it from the Crowns closing. The trial judge, having heard both defence
    counsels closing and that of the trial Crown, understood the Second Impugned Comment
    to simply be part of the Crowns reminder to the jury that it had heard and
    seen the complainant give her testimony at trial but not at the preliminary
    inquiry and that the jury did not know what the complainants emotional state
    had been at the preliminary inquiry.

[100]

I accept the trial judges determination of this matter.  As the
    Supreme Court stated in
R. v. Rose
, [1998] 3 S.C.R. 262, at para. 126
,
the trial judge is in
    the best position to assess the significance of the remarks of counsel, to
    determine if they need to be corrected and, if necessary, to correct
    inaccuracies and remedy any unfairness that may arise from the addresses of
    counsel. The trial judge did not see the trial Crowns reference to the fact
    that the complainant might have been crying or breaking down at the preliminary
    inquiry as an invitation to the jury to speculate about the complainants
    demeanour. Rather, she viewed it as part of explaining the inability of a
    transcript to convey the complainants emotional state when testifying at the
    preliminary inquiry.

[101]

There was nothing wrong with the Crown reminding the jury that nuances
    and emotion are lost when considering transcripts. With transcripts, the trier
    of fact is unable to assess the witnesss demeanour when testifying and is
    therefore left without the potentially important insights that the ability to
    observe the witness when testifying can afford to a fact finder in the
    assessment of that witnesss credibility:
R. v.
    Rowe
,
2011 ONCA
    753, 281 C.C.C. (3d) 42, at para. 43.

[102]

This is not a case like
R. v. Iyeke
, 2016 ONCA 349, where the misstatement was the centerpiece of the
    Crowns closing address. In
Iyeke
, the accused was charged with possession of a firearm. The Crown
    told the jury in its closing submissions that a confidential informant had told
    police that the accused had a gun. The statement was wrong. In allowing the
    appeal, this court noted that the confidential tip was the centerpiece of the
    Crowns closing address and repeatedly emphasized by the Crown as a powerful
    piece of incriminating evidence. In the present case, the Second Impugned Comment
    was nothing close to being the centerpiece of the Crowns closing submission:
    Crown counsel mentioned it only once and then only briefly.

[103]

I would add that a contextual consideration of the Second Impugned Comment
    must include that, after the defence closing, Crown counsel asked the trial
    judge for a corrective instruction on the tone that defence counsel had added
    when reading the extracts from the preliminary inquiry transcripts. The trial
    judge replied that the Crown could make that argument before the jury and,
    significantly, defence counsel did not object.

[104]

I would dismiss this ground of appeal. To the extent that the Second
    Impugned Comment may have veered into impropriety through its reference to
    crying and breaking down, in the context of the whole address, it did not
    deprive the accused of a fair trial.

Issue #2      No error in the trial judges
    instruction on consent

[105]

For ease of reference, I set out again the impugned instruction on
    consent:

Consent is the voluntary agreement of [the
    complainant] to take part in the sexual activity that she said happened. In
    other words, [the complainant]
wanted

[the accused]
    to do what he did. [Emphasis added]

A.      The Parties Positions

1.       The
    Accuseds Position

[106]

The defence made no objection to the trial judges instruction on
    consent at trial. Before this court, however, the accused submits that consent
    and wanting are not synonymous and, while jury instructions equating the two
    concepts are common, the use of the word wanted in the impugned instruction
    misled the jury into understanding that subjective desire was a necessary
    component of consent. He observes that a person might voluntarily agree to do
    acts that they do not want to perform, for a variety of motivations. For
    example, a partner might voluntarily agree to a sexual act she does not want
    out of affection or in the expectation of reciprocal pleasure.

[107]

As a result of the impugned instruction, the accused submits that
    the jury might have convicted on the basis that the complainant was strongly
    attracted to him and, voluntarily though unhappily, performed oral sex despite
    not wanting to. In support of his submission, the accused points to case law
    where courts have distinguished the two concepts. For example, the accused quotes
    from Dawe J. in
R. v. S.M.
, 2019 ONSC 7073, at para. 91:

Although G.C. testified that he never wanted
    to have sex with S.M., the subjective mental state of consent under Ewanchuk
is not synonymous with "subjective desire". People
    can consent to do something they would rather not do if they decide, on
    balance, that the reward they will get for doing the thing outweighs their
    subjective preference not to do it
. [Emphasis added.]

[108]

And, in
R. v. Shimizu
, 2010 CarswellOnt 10397
, at paras. 33-34, Croll J. found that although the complainant did
    not want to engage in sexual activity, the Crown had failed to prove lack of
    consent beyond a reasonable doubt because the complainant may have engaged in
    the sexual activity for the purpose of career advancement.

2.       The
    Crowns Position

[109]

The Crown acknowledges that consent was a live issue in relation to
    the oral sex allegation. It points to the trial judges lengthy instruction on
    the meaning of consent, in which she clearly explained that the jury had to be
    satisfied that the Crown had proven beyond a reasonable doubt that the
    complainant had not consented and that the accused knew she did not consent.

[110]

The Crown contends that, in this case, there was no need for the
    trial judge to distinguish between the closely related concepts of voluntary
    agreement and subjective desire. The complainant said she did not want to
    perform oral sex and did not consent. The accused said the complainant wanted
    to perform oral sex and consented. In other words, there was no interpretation
    of the evidence that would have allowed the jury to conclude that the Crown had
    proven the complainant did not want sexual contact but failed to prove that
    there was not voluntary agreement to sexual contact.

B.
Analysis

[111]

I would reject this ground of appeal. While in some cases a trial
    judge may be required to differentiate between voluntary agreement and
    subjective desire (i.e. wanting), this was not such a case. In the circumstances
    of this case, the trial judge did not err in using the word wanted in the
    impugned instruction.

[112]

In assessing whether the jury might have been misled by the impugned
    instruction, I begin by considering it in the context of the overall instruction
    on consent. The only time that the trial judge used the word wanted was in
    the impugned instruction. Apart from that one instance, the trial judge
    repeatedly instructed the jury that they had to be satisfied that the
    complainant voluntarily agreed to engage in the sexual activity in question. In
    so doing, the trial judge used the statutory definition of consent in s.
    273.1(1) of the
Criminal Code
. For example, the trial judge instructed the jury on the meaning of
    consent as follows:

It involves knowledge of what is going to
    happen, and voluntary
agreement

to do it or let it be done. A
    voluntary
agreement

to engage in sexual activity is not valid if
    what [the complainant] said or did indicated to [the accused] that she did not
agree

to participate in that activity. A voluntary
agreement

to
    engage in sexual activity is also not valid, if [the complainant] had
    originally
agreed

to participate in sexual activity but changed
    her mind and expressed in words or conduct, or both, that she did not
agree

to continue to participate in the same or different sexual activity. [Emphasis
    added]

[113]

Next, as the accused acknowledges, a jury instruction equating
    consent with wanting is common. In this regard, two things are worthy of
    note. First, in the seminal case of
R. v. Ewanchuk
, [1999] 1 S.C.R. 330, at paras. 23 and 48, the Court described the
actus reus

of the offence of sexual assault as unwanted sexual touching and
    said that, for the purposes of the
actus reus
,
consent means that the complainant in
    her mind wanted the sexual touching to take place. Second, the charge in this
    case tracked the language in
Watts Manual of
    Criminal Jury Instruction
, 2
nd
ed
    (Toronto: Thomson Reuters Canada, 2015, Final 271), at p. 599.

[114]

With these considerations in mind, I ask whether the impugned
    instruction might have prejudiced the accused. In my view, it could not have: there
    was nothing in the evidence upon which the jury could conclude that the
    complainant did not want to perform oral sex but she nonetheless voluntarily
    agreed to do so nor did defence counsel ever suggest that the complainant
    engaged in the sexual activity for any purpose other than subjective desire. The
    accuseds version of events was that the complainant initiated oral sex and
    that intercourse never took place.

[115]

The evidence only permitted the jury to make one of two findings:
    that the complainant did not want to perform oral sex and did not agree to do
    so or that she agreed to perform oral sex and wanted to do so. Accordingly, the
    jury could not have concluded that the Crown had proven the complainant did not
    want sexual contact but had not proven that there was no voluntary agreement to
    sexual contact.

[116]

The cases of
S.M.

and
Shimizu
, relied on by the accused, are readily distinguishable from the
    present case. In both those cases, the trial judge found that there was a
    possibility that the complainant agreed to the sexual activity for a reason
    other than pleasure or affection. In
S.M.
, the reason was money and in
Shimizu
,
it was career advancement. In this
    case, there was no evidence that the complainant consented to engage in sexual
    activity for a reason other than a subjective desire nor was there a theory of
    the case presented to the jury that she consented for any reason other than
    subjective desire.

[117]

While the absence of defence objection is not determinative, the
    failure to object may be indicative of the seriousness of what is later said to
    be an error:
R. v. R.D.
, 2020 ONCA 23, [2020] O.J. No. 112, at para. 15.  In my view, it is
    indicative in this case.

[118]

Accordingly, in my view, the jury charge was clear and proper on the
    issue of consent and I would dismiss this ground of appeal.

Issue #3      No error in the trial judges ruling
    on the s. 276 application

In light
    of the mandatory ban on publication contained in s. 278.95 of the Criminal
    Code, paragraphs 119 to 127 have been redacted from the public version of this
    decision.

[128]

Accordingly, this ground of appeal fails.

DISPOSITION

[129]

For these reasons, I would allow the appeal against acquittal, set
    aside the order for a directed acquittal, and order a new trial on the count of
    dissemination of intimate images contrary to s. 162.1 of the
Criminal Code
. And, I would dismiss the
    appeal against conviction.

E.E.
    Gillese J.A.

I
    agree. K. Feldman J.A.




B.W. Miller J.A. (dissenting):

[130]

I agree with my
    colleagues reasons and disposition on the conviction appeal. I would, however,
    dismiss the Crown appeal of the acquittal on the charge of disseminating an
    intimate image.

[131]

The centrepiece of this
    Crown appeal is the claim that a person who receives a FaceTime video call  a
    live event  is in fact viewing a recording. This is obviously wrong on any
    conventional understanding of the meaning of a recording. No one would ever
    speak in such a way. The Crown nevertheless advances an argument that s. 162.1
    of the
Criminal Code
should be interpreted such that any visual display
     including any display of unrecorded, live-streamed images  is a visual
    recording. The statutory interpretation argument fails, not simply because of
    the stipulation of a novel and untenable definition of recording. More
    fundamentally, as explained below, the argument contradicts basic principles of
    statutory interpretation.

[132]

In short, although the
    accuseds alleged actions would have grossly violated the complainants dignity
     and he arguably would have been answerable to charges under s. 162 of the
Criminal Code
 the elements of s. 162.1 were not made out, the Crown is not free to
    reimagine the elements of the offence as though it were a common law offence,
    and the trial judge made no error in returning a directed verdict of acquittal
    on those charges.

I.
STATUTORY INTERPRETATION METHODOLOGY

[133]

I begin with this
    observation: legislating is reasoned activity. Legislating results in a
    legislative text intended to communicate the content of a lawmaking decision to
    the intended audience: Stéphane Beaulac,
Handbook
    on Statutory Interpretation: General Methodology, Canadian Charter and
    International Law
(Markham, ON: LexisNexis, 2008), at pp. 8-10; Cameron Hutchison,
The Fundamentals of Statutory Interpretation
(Toronto: LexisNexis, 2018), at p. 48.
    Legislation establishes and specifies legal rights and obligations. It is
    intended to guide behaviour, and in order to guide behaviour it must be
    intelligible to the intended audience.

[134]

The judicial role in
    interpreting legislation is obviously different in kind from the role of the
    legislature in enacting legislation. Statutory interpretation is a matter of
    ascertaining the change in the law the legislature intended to communicate
    through the legislative text. The task of interpretation neither contemplates
    nor permits judicial reordering of priorities or substituting other, perhaps
    better means to achieving Parliaments purpose. Judges are not to be co-authors
    with the legislature, nor are they to second-guess the means that Parliament
    has chosen to achieve its aims, no matter how beneficial the judicial
    amendments may appear to be:
Williams v. Canada
    (Minister of Public Safety and Emergency Preparedness)
, 2017 FCA 252, 417 D.L.R. (4th) 173, at
    paras. 41-52,
per
Stratas J.A.;
Canada v.
    Cheema
,

2018 FCA
    45, 420 D.L.R. (4th) 534, at paras. 73-75,
per
Stratas J.A, leave to
    appeal refused, [2018] S.C.C.A. No. 137. See also Elmer A. Driedger,
Construction of Statutes
, 2nd ed. (Toronto: Butterworths, 1983),

at pp.
    28-34.

A.

The Modern or Orthodox Principle

[135]

Although the practice
    of statutory interpretation can be difficult, the objective is not. Statutory
    interpretation is concerned with determining the intention of Parliament. As
    Driedger put it in
Construction of Statutes
, at pp. 105-06:

In the end, therefore, as Chief Justice Tindal
    said in the
Sussex Peerage Case
the only rule for the construction of
    Acts of Parliament is, that they should be construed according to the intent of
    the Parliament which passed the Act.
The construction of statutes means
    finding that intention
. [Emphasis added.]

[136]

More recently,
    Professor Richard Ekins reiterated that [o]rthodox principles of statutory
    interpretation centre on recognising the intended meaning of the enacting
    Parliament: Richard Ekins, Sentences, Statements, Statutes (2016) Analisi e
    Diritto 321, at p. 322. See also Hutchison, at p. 48; Beaulac, at p. 8; and
    Ruth Sullivan,
Sullivan on the Construction of
    Statutes
, 6th ed.
    (Toronto: LexisNexis, 2014), at §2.5-2.6.

[137]

The practical
    methodology for ascertaining intended meaning was long established in the
    practice of Canadian courts before Driedger summarized it and gave it the label
    of modern, or orthodox, principle: Beaulac, at p. 30; see also Michael Plaxton,
Sovereignty, Restraint, and Guidance: Canadian
    Criminal Law in the 21st Century
(Toronto: Irwin Law, 2019), at pp. 95-97. The Supreme Court has
    expressly adopted Driedgers formulation of the modern principle in hundreds
    of cases. In
R. v. Jarvis
, 2002 SCC 73, [2002] 3 S.C.R. 757, at
    para. 77, Iacobucci and Major JJ. distilled Driedgers modern principle as
    follows:

The approach to statutory interpretation can
    be easily stated: one is to seek the intent of Parliament by reading the words
    of the provision in context and according to their grammatical and ordinary
    sense, harmoniously with the scheme and the object of the statute (
Interpretation
    Act
, R.S.C. 1985, c. I-21, s. 12;
Bell ExpressVu Limited
    Partnership v. Rex
, [2002] 2 S.C.R. 559, 2002 SCC 42;
Rizzo
    & Rizzo Shoes Ltd. (Re)
, 1998 CanLII 837 (SCC), [1998] 1
    S.C.R. 27;
R. v. Gladue
, 1999 CanLII 679 (SCC), [1999]
    1 S.C.R. 688; E. A. Driedger,
Construction of Statutes
(2nd
    ed. 1983), at p. 87).

[138]

At the Federal Court of
    Appeal, Stratas J.A. further distilled the modern principle to its bare
    essentials, providing the useful shorthand of text, context, and purpose:
Williams
,
at para. 41;
Cheema
, at para. 73
.

B.

Text, Context, and
    Purpose

[139]

There is no sequential
    ordering of the modern principle factors, beyond beginning with the text of the
    statute to be interpreted. The factors are closely related and need not be
    addressed separately in every case:
Bell ExpressVu
    Limited Partnership v. Rex
,
    2002 SCC 42, [2002] 2 S.C.R. 559, at para. 31. Their unity is in serving the
    same inquiry: what can the interpreter ascertain about Parliaments intention?
    What changes to the rights and obligations of persons did Parliament intend
    through the legislation enacted?

[140]

As Driedger explains,
    at pp. 2 and 105, the first step in discerning what Parliament intended is to
    consider the words it used in the context it used them, giving those words
    their grammatical and ordinary meaning: see also Sullivan, at §3.7; Hutchison,
    at pp. 46-47. Absent an ambiguity, which requires the interpreter to
    distinguish among multiple senses of the same word, the text will normally
    dominate interpretation, although it may not always be sufficient:
Canada Trustco Mortgage Co. v. Canada
,
2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10. Reading the words of a statute
    in the context of the legislative scheme as a whole can help with understanding
    Parliamentary intent, as can considering what it is that Parliament intended to
    achieve through the statute:
Rizzo v. Rizzo Shoes
    Ltd. (Re)
, [1998] 1
    S.C.R. 27
.

C.

A Note About
    Ordinary Meaning

[141]

Just as with every
    other type of communication, in the context of legislation the same word can be
    used to convey vastly different meanings. Although attention to context will
    usually narrow the potential senses in which a word is used, there may remain
    more than one possibility. Even within the same sense or definition, a word can
    have broader and narrower meanings. When it comes to interpreting the words of a
    statute used in context, an interpreter is to presume that Parliament used the
ordinary meaning
of words, rather than some technical, arcane, or exotic sense, unless
    the context suggests that a non-ordinary meaning was intended. The reason for
    the presumption is obvious enough: because legislation is an act of
    communication, communication is most likely to succeed where there is a shared
    understanding of the meaning of the words used. As Professor Michael Plaxton
    explained in his text,
Sovereignty, Restraint, and
    Guidance: Canadian Criminal Law in the 21st Century
, at p. 97:

Confronted with a statutory provision for the
    first time, we proceed on the basis that Parliament chose the text it did, not
    with a view to confusing or eluding its readers but intending to be understood
    by its audience. With that in mind, we generally assume that Parliament
    intended a term or phrase to be given its ordinary meaning and not some
    obscure, technical, bizarre, or idiosyncratic meaning.

[142]

Ordinary meaning is
    often expressed in terms of the natural or first impression that arises
    spontaneously when words are read in context: see
e.g.

Pharmascience
    Inc. v. Binet
, 2006 SCC
    48, [2006] 2 S.C.R. 513, at para. 30. As a matter of first impression, the
    context in which a word is used will prompt a reader to quickly and
    subconsciously discard many inapposite senses of a word. But
Pharmascience
should not be taken as suggesting that the ordinary meaning of a word is a
    function of its readers subjective reaction, as though a statute were a type
    of Rorschach test.
Reading is a matter of
    impression, but it is the impression that ought to be formed in the mind of a
    competent speaker of the language by a particular text that uses the
    conventions of language shared between the legislature and the intended
    audience: Pierre-André Côté, Stéphane Beaulac & Mathieu Devinat,
The Interpretation of Legislation in Canada
, 4th ed. (Toronto: Carswell, 2011), at pp. 277-78.
A reader is directed to consider the first
    impression because an accurate first impression should result from effective
    communication.

[143]

However, as Hutchison
    notes, at p. 45, ascertaining the ordinary meaning of a provision is not
    effortless: The phrase ordinary meaning is deceptive in the sense that
    uncovering the meaning of words in a statute is not a simple or routine task.
    Indeed, it is often a difficult and probative exercise. Even where language is
    straightforward, the context may carry a more nuanced meaning than might be
    expected: Hutchison, at pp. 45-47.

[144]

Statutory interpretation
    is an exacting scholarly discipline. It requires a comprehensive understanding
    of canons of interpretation and other presumptions that help the reader
    understand what it is that Parliament intended. There is a rich body of law and
    scholarship to guide interpretation, even in easy cases. Accordingly, before
    turning to the legislative provision in question in this appeal, and the trial
    judges treatment of it, I will address three complications to assessing
    ordinary meaning that are potentially relevant.

[145]

First, dictionaries or
    other resources  such as other works of lexicographers and others who study
    language use  can be useful in ascertaining ordinary meaning. They provide
    some objective evidence of the shared conventions of language through which Parliament
    communicates. But dictionary definitions must be approached with caution. Among
    other reasons, this is because dictionaries aim to provide a comprehensive
    catalogue of all of a words possible uses. The legislature, however, will not
    have intended all of these possible uses, and the multiplicity of potential
    meanings can generate ambiguity and confusion. Even where no ambiguity results,
    simply applying a dictionary definition to a word taken out of context will
    result in an erroneously broad interpretation: Sullivan, at §3.31-3.32;
    Hutchinson, at pp. 45-46. Additionally, dictionaries can sometimes lag behind
    contemporary language use. It is important to avoid, on the one hand,
    anachronistic definitions unlikely to have been used by the legislature, and,
    on the other, new meanings that post-date the legislation. Dictionaries also
    vary widely in their quality and precision, and it is important to prefer those
    that are substantial works of scholarship: see Appendix A: A Note on the Use
    of Dictionaries in Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts
(St. Paul, MN: Thompson/West, 2012), at
    pp. 415-24. However, the point of the oft-repeated caution about dictionaries
    is to use them with care, not to neglect them in favour of untutored instinct.

[146]

Second, the meaning of
    the words used will be the meaning that Parliament intended at the time of
    enactment. The original meaning is fixed and does not change with any
    subsequent linguistic drift that might occur: Driedger, at p. 163; Sullivan, at
    §6.10-6.11 This is a requirement of the rule of law: that law be knowable in
    advance such that persons can make choices and organize their lives in ways
    that do not to run afoul of it. Criminal liability cannot depend on social
    facts  like changing linguistic conventions  that are outside the control of
    the legislature or unknowable to an accused at the time of the supposed
    offence:
R. v. D.L.W.
,
2016 SCC 22, [2016] 1 S.C.R. 402, at paras. 20-21, 57-61. Accordingly, when
    assessing the meaning of a statutory provision, an authoritative interpreter 
    such as a court  must be concerned with the intended meaning
at the time of
    enactment
. As Dickson J. noted in
R. v. Perka
, [1984] 2 S.C.R. 232, at pp. 264-65:

The words of a statute

must be construed as they would have been
    the day after the statute was passed
Sharpe v. Wakefield

(1888), 22
    Q.B.D. 239, at p. 242 (
per
Lord Esher, M.R.). See also
    Driedger,
Construction of Statutes

(2nd ed. 1983) at
    p. 163: Since a statute must be considered in the light of all
    circumstances existing at the time of its enactment it follows logically that
    words must be given the meanings they had at the time of enactment, and the
    courts have so held;
Maxwell on the Interpretation of Statutes
,

supra
,

at p. 85: The words of an Act will
    generally be understood in the sense which they bore when it was passed.

[147]

Third, words vary in
    their level of generality, and the generality of the words chosen by a
    legislature impacts the breadth of the discretion a legislature intends courts
    to have in interpreting the legislation. Generality is a key tool that
    legislatures use in ensuring that legislation is able to address unforeseen or
    changed circumstances.

[148]

In this regard, the
    discussion in
R. v. Perka
is instructive. In that case, Parliament
    had made it an offence to prohibit the possession of
Cannabis sativa

L
. At the time the legislation was passed,
    the scientific consensus was that there was only a single species of cannabis,
    and the intention of Parliament in proscribing the possession of
Cannabis sativa

L.
was to proscribe the possession of all
    species of cannabis. Subsequent developments in botany suggested that what was
    previously thought to have been a sub-strain of
Cannabis
    sativa

L.
was actually a different strain. Dickson J. held that Parliament had
    used
Cannabis sativa

L
. in
    the
Narcotic Control Act
, R.S.C. 1970, c. N-1,
to denote a
category
encompassing
    all strains of cannabis. Parliaments use of the term to denote
all
strains of
    cannabis was not impacted by a subsequent change in botanical knowledge and
    terminology: at pp. 265-66.

[149]

Conversely, broad or
    open-textured language can sometimes be used to establish a category the
    membership in which is not fixed at the time of enactment and may come to later
    include things unknown at the time the statute was enacted. In
R. v. Perka
,
    at p. 265, Dickson J. gives the example of the
Engraving
    Copyright Act
of 1735,
    which prohibited unauthorized engraving or in any other manner copying prints
    and engravings. In
Gambert v. Ball
(1863), 32 L.J.C.P. 166, it was held that
    copying prints in any other manner applied to photographic reproduction of
    prints, even though that process was invented more than a hundred years after
    the statute was enacted. The key in
Gambert
was to discern what the legislature
    intended by the words it used.

D.

What Comes Next

[150]

Ascertaining the
    ordinary meaning is not the whole of statutory interpretation, but it is a
    necessary beginning. Although Parliament is presumed to use the ordinary
    meaning of words, this presumption can be displaced if there is good reason 
    supplied by the context or the purpose of the legislation  to believe that
    Parliament intended some other meaning. But it must be stressed that this is
    not a free-standing authority to substitute some
better
meaning for the one that Parliament
    intended, even if, to the judicial mind, substitution would better accomplish
    Parliaments purpose. Throughout, the judicial responsibility is to identify
    what Parliament intended the words to mean, not what it ought to have said but
    did not.

I.

THE TRIAL DECISION

A.

The Legislation

[151]

The accused was charged
    with disseminating an intimate image of another person, contrary to s. 162.1 of
    the
Criminal Code
. Section 162.1(1) provides:

162.1

(1)
Everyone who knowingly
    publishes, distributes, transmits, sells, makes available or advertises an
    intimate image of a person knowing that the person depicted in the image did
    not give their consent to that conduct, or being reckless as to whether or not
    that person gave their consent to that conduct, is guilty

(a)
of an indictable offence and liable to imprisonment for a term
    of not more than five years; or

(b)
of an offence punishable on summary conviction.

[152]

A definition of
    intimate image is provided in s. 162.1(2):

(2)
In
    this section,
intimate image
means a visual recording of a
    person made by any means including a photographic, film or video recording,

(a)
in which the person is nude, is exposing his or her genital
    organs or anal region or her breasts or is engaged in explicit sexual activity;

(b)
in respect of which, at the time of the recording, there were
    circumstances that gave rise to a reasonable expectation of privacy; and

(c)
in respect of which the person depicted retains a reasonable
    expectation of privacy at the time the offence is committed.

B.

The Trial Judges
    Reasoning

[153]

The accused brought a
    motion for a directed verdict of acquittal on the basis that the Crown had
    failed to meet its burden of establishing that the image that was alleged to
    have been transmitted was an intimate image as defined in s. 162.1(2): a
    visual recording of a person made by any means. The trial judge allowed the
    motion on the basis that, as a matter of statutory interpretation, visual
    recording means any image captured on any device, electronic or otherwise,
    that has the capability for reproduction. She concluded that a FaceTime call,
    as a live real-time transmission to another person, with both an auditory and
    a video component is not a visual recording. It is identical to a phone call
    with the added component of an image. The trial judge was open to the
    possibility that despite the evidence before her, it was possible that FaceTime
    operated by recording images. But she was unwilling to take judicial notice of
    this technical aspect of the operation of FaceTime, and required evidence on this
    point.

II.

Analysis

[154]

Having surveyed the
    appropriate methodology and reviewed the impugned legislation, I turn to
    considering how the Crowns arguments accord with the text, context, and
    purpose of s. 162.1.

A.

Text

[155]

The Crown argues that
    the trial judge misinterpreted s. 162.1(2) in understanding a visual
recording
as
    an image of some permanence that is capable of reproduction. The Crown argues
    that a visual recording should be interpreted as any visual display created by
    any means.

[156]

The Crown faults the
    trial judge for simply asserting an ordinary or common sense meaning of visual
    recording without providing any source or explaining how she arrived at that
    conclusion.

[157]

If this was how the
    trial judge reasoned, it would have been a methodological error. Where there is
    a genuine dispute as to the meaning of a key term, a judge may not resolve the
    dispute by simply stipulating a definition.

[158]

But although the Crown
    makes much of the fact that the trial judge did not provide a source for her
    definition of visual recording in her oral reasons, there is no real mystery
    here. The transcript of the oral submissions makes matters abundantly clear.
    Counsel for the accused had put definitions before the trial judge from two
    dictionaries, both of which defined recording in terms of a degree of
    permanence and capacity for reproduction. One could also consider a more
    authoritative source, such as the
Oxford English
    Dictionary
, which
    provides (among other definitions): a series of sounds (esp. a musical
    performance) or video images
stored in permanent
    form for later reproduction
 (emphasis added).

[159]

Ironically, it is the
    Crown that makes the methodological error it attributes to the trial judge: it
    simply asserts a definition  a visual display created by any means  for
    which there is no lexicographic support. No support is offered from
any dictionary, or the work of any lexicographer, or
    anyone else who studies contemporary language use. The term does not appear to
    have ever been used in such a way by any identifiable person or group. Yet the
    Crown offers this invented meaning as the basis for a criminal conviction.

[160]

This is remarkable.

[161]

The submission would be all the
    more remarkable had the Crown followed the argument to its terminus and
    concluded that this newly minted ordinary meaning  one never before used by
    any person  is the meaning that Parliament intended when the statute was
    enacted in 2015.

[162]

The Crown is not unaware of the
    difficulties of arguing for an ordinary meaning that does not correspond to
    actual language use. But as explained below, the argument it mounted to blunt
    the objection does not succeed. From the Crowns factum:

However, the plain or ordinary meaning of
    a word is not necessarily synonymous with its dictionary definition. A words
    ordinary meaning is the readers first impression meaning, the understanding
    that spontaneously comes to mind when words are read in their immediate
    context. This meaning is not frozen. Rather, a words ordinary meaning will
    change with time and context. The word technology, for example, means
    something very different today than it did 100 years ago. [Citing
Wookey
,
    at para. 25.]

The definition of recording has changed over
    time. Recordings were historically confined to visuals that were recorded and
    could be viewed at a later time or place, such as photographs and videotapes.
    However, live transmissions, such as FaceTime [
sic
], permit visuals to
    be captured by a device and broadcast simultaneously. It is now commonly
    understood that visual recordings can be broadcast from one location and viewed
    in another simultaneously. The ordinary meaning of recording must encompass
    these new forms of technology.

[163]

The problem of relying on an
    impressionistic reading that contradicts established linguistic conventions
    has been explained above. The argument from the capacity of semantic meaning to
    change over time also fails, but this requires greater explanation as the
    Crowns argument equivocates between two propositions: one inherently unsound
    and one sound but misapplied.

1.       The Unsound
    Proposition

[164]

The unsound proposition is that
    because the meaning of words can change, the meaning of a statute necessarily
    changes with them. Out of the gate, this argument stumbles over first
    principles: as explained in para. 146 above, statutory interpretation is a matter
    of ascertaining what Parliament intended to communicate through the statutory
    text at the time of enactment. Accordingly, any subsequent change in the
    meaning of the words that Parliament used has no effect on the intended
    meaning.

[165]

It would be arguable, were there
    any evidence of such usage, that although the semantic meaning of recording
    entailed preservation, the meaning changed
prior
to the enactment of s. 162.1 such that it would be
    reasonable to conclude that Parliament was cognizant of such a meaning and
    intended to use the word in this way. But there is no evidence of such usage
    and the proposition that the definition of recording has, as a matter of
    semantic meaning, changed to include a any visual display created by any
    means is untenable.

2.       The Sound Proposition

[166]

But much depends on the meaning of
    change. The sound proposition within the Crowns submission is that where
    Parliament uses broad classes and concepts to denote its meaning, it
    necessarily assigns to subsequent interpreters the task of determining whether
    some instance comes within the enumerated class or concept: Hutchison, at pp.
    45, 50-52; see also Sullivan, at §6.10. With such drafting, Parliament intends
    to accommodate changed
circumstances
that it did not, and perhaps could not, foresee. As
    Driedger explained, at p. 163, words must be given the meanings they had at
    the time of enactment, however, the ordinary original meaning of words may be
    held to embrace things unknown when the words were used.

[167]

Thus, when the Crown asserts that
    [t]he definition of recording has changed over time, it can perhaps be
    understood as advancing a proposition about technological change rather than
    linguistic change.
Accordingly,
    in the circumstances of this appeal, the question is whether a FaceTime
    transmission is a technology that comes within the broad category of
    recording, as that term was used in the context of s. 162.1(2).

[168]

The short answer is no.

[169]

FaceTime is not a
    technology that postdates the enactment of s. 162.1(2). It was ubiquitous
    technology well before the enactment of the subsection in 2015. More
    significantly, the concept of live video transmission was well known and well
    established long before that time, though not on handheld devices. Given that
    the distinction between the transmission of a live event and the transmission
    of a recording was well known, s. 162.1(2)s specific focus on the transmission
    of a recording is significant and cannot be dismissed with the argument that
    the concept of recording or archiving, though once a necessary precondition to
    transmission, is now obsolete.

[170]

Indeed, the surrounding
    context in the
Criminal Code
makes it obvious that Parliament was well
    aware of the distinction between live-stream transmissions and transmissions of
    recordings, particularly when one considers the nuanced vocabulary Parliament
    used. For example, the offence for voyeurism under s. 162 explicitly
    distinguishes between the action of
observing

(
i.e.
observes) using electronic means, and
    making a
visual recording
, both of which are proscribed. As with s.
    162.1, Parliament specifically defines a visual recording as including a
    photographic, film or video recording made by any means. The context, listing
    video recording with photographic and film recordings, confirms the archival
    nature of video recording, and thereby visual recording. In contrast, under
    s. 163.1, Parliament uses the broad category of video or other visual
representation

    (emphasis added), rather than the narrower category of visual recording.
    Between ss. 162 and 163.1, which flank either end of s. 162.1, electronically
observing
a
    person,
making
an
    electronic
representation
, and
making a recording
are all distinguished as separate actions.
    These provisions demonstrate Parliament was alive to the distinction between
    transmitting video data (e.g. observing through electronic means or creating a
    video representation) and making a recording.

[171]

Consequently, there has
    been no relevant technological change that bears on the meaning of s. 162.1. What
    the Crown is left with is the proposition that a reauthoring of the provision
    would better achieve s. 162.1s purpose, being to protect human dignity and
    privacy by prohibiting the transmission of intimate visual images. But where
    Parliament chooses specific means to achieve its ends, the court is not
    permitted to choose different means any more than it would be permitted to
    choose different ends. The interpretive question is not what best promotes the
    sections purpose, such that courts can modify the text to best bring about
    that result, but rather
how
Parliament chose to promote its purpose.
    Courts are required to respect chosen
means
as well as ends. Had Parliament only
    enacted s. 162.1(1), leaving intimate image undefined, the Crowns case would
    be plausible. But by specifying that an intimate image is a recording, courts
    must give effect to that choice.

[172]

To sum up, the argument
    that the ordinary meaning of a visual recording includes  as a matter of
    contemporary linguistic use  any visual display created by any means must be
    rejected. There is no evidence in the record before this court that visual
    recording has ever been used in this way. Often, debates over statutory
    interpretation revolve around which of several possible meanings is apt. In
    this case, there is no contest between rival meanings. What the Crown has
    proffered as the ordinary meaning of a visual recording is not only not the
    ordinary meaning, it is an invented meaning. Although the Crowns argument is
    framed in terms of ascertaining the conventional, ordinary meaning of language,
    it is actually an argument about what meaning
ought
to be imposed on s. 162.1, so as to best
    achieve the purpose of the section.

B.

Context

[173]

Ascertaining ordinary
    meaning does not exhaust the task of statutory interpretation, although it
    greatly structures and to some extent confines it. There remain additional
    inquiries. First, is there reason to believe that Parliament intended some
    other meaning? This is resolved by further resort to firstly, context, and
    secondarily, purpose. Second, are there exceptional, unforeseen circumstances
    that would allow a court to conclude that there is some gap between
    Parliaments purpose and the intended meaning of the statute? That is, are
    there unforeseen circumstances where the intended meaning of the statute and
    the reasoned choice behind the legislation have been pulled apart? Such
    exceptional, unforeseen circumstances could authorize a corrective exception or
    extension, as the case may be: see Richard Ekins,
The
    Nature of Legislative Intent
(Oxford: Oxford University Press, 2012), at
pp. 275ff (Ekins,
Legislative
    Intent
).

[174]

One can quickly dispose
    of the suggestion that Parliament did not intend to use recording in the
    phrase visual recording in the ordinary sense with its archival denotation.
    The context provides no reason to attribute some other meaning, nor does anything
    in the context suggest that the invented meaning of any visual display is
    what was intended. Instead, as I already discussed above, at paras. 170-71, the
    context surrounding s. 162.1 supports understanding recording in its ordinary
    sense with an archival denotation.

[175]

The Crown glosses over
    the interpretive significance of s. 162 of the
Code
. That section establishes the offence of
    voyeurism and is helpful to understanding s. 162.1. 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.

Definition
    of
visual recording

(2)

In this section,
visual recording
includes a photographic, film or video recording made by any means. [Emphasis
    in original.]

[176]

The voyeurism provision
    uses much of the same language as s. 162.1. Crucially, the section distinguishes
    between visually observing a person through electronic means and making a
    visual recording. It is an offence under s. 162(1) to do either. But the
    distinction suggests that using an electronic device to observe a person
    (whether the observation is, for example, done by the person placing a FaceTime
    video call or the person receiving it) is not the same thing as making a visual
    recording. Visual observation by electronic means  that is, observation of a
    visual display  does not entail the making of a visual recording. It would be
    both counter-intuitive for Parliament to have used visual recording in two
    different senses in adjacent sections of the
Criminal
    Code

and contrary to the presumption of
    consistent usage:
Thomson v. Canada (Deputy Minister
    of Agriculture)
, [1992] 1
    S.C.R. 385, at pp. 400-01.

C.

Purpose

[177]

Finally, how does the
    purpose of s. 162.1 assist in its interpretation? This inquiry is often
    referred to as a purposive interpretation or analysis, and it serves to ensure
    that in construing the meaning of words, the interpreter takes legislative
    purpose into account: Plaxton, at pp. 102-03; Sullivan, at §9.3.

[178]

While engaging in
    purposive interpretation, one must be careful not to conflate purpose and
    meaning. The consideration of purpose as an interpretive guide is in helping
    resolve what Parliament intended by the statute it enacted. It is not a
    question of whether a differently worded statute would  in the mind of the
    interpreter  better achieve the purpose. We must not take the ends for which
    the legislature acts to license the substitution of alternative means: Ekins,
Legislative Intent
, at pp. 251, 254-55. The danger in purposive interpretation is that it
    can easily be misused by taking an abstract statement of statutory purpose  say,
    the protection of privacy or human dignity  and then concluding that the
    statute enacts whatever propositions would best achieve this aim. This would
    subordinate the legislatures actual reasoning and the actual plan chosen to
    achieve its aim: Ekins,
Legislative Intent
,

at pp. 249-55; Plaxton, at pp.
    106-07; and Sullivan, at §10.25, 15.5.

[179]

It is common ground
    that in enacting s. 162.1, Parliament intended to protect human dignity and
    privacy by prohibiting the transmission of intimate visual images. It was
    responding specifically to instances of great personal harm caused by persons
    who had uploaded or distributed intimate images of women and girls. Although it
    was already an offence under s. 162(4) to distribute voyeuristic recordings, s.
    162.1 created an additional offence of distributing intimate visual recordings
    that had been made non-voyeuristically. The type of visual recordings caught by
    this provision was intended to be extremely broad: visual recording of a
    person made by any means. Thus, s. 162.1 captures not only means of recording
    that existed at the time of enactment, or those that were specifically
    enumerated, but all means of recording, present and future.

[180]

It cannot be concluded
    that because Parliament intended to capture all means of making a recording and
    a very broad class of means of distribution, it therefore also intended to
    define intimate image as broadly as the Crown contends. The text and context
    both suggest otherwise. Parliament did not need to define intimate image in terms
    of a visual recording. Had intimate image been left undefined by s. 161.1(2),
    it would arguably have been broad enough to include live-streamed images.
    However, Parliament chose to specify the meaning as visual recording rather
    than visual display, visual depiction, or visual representation, as in s.
    163.1(1)(a). All of these options were open to Parliament, and it instead chose
    the more restrictive category of visual recording.

[181]

I reiterate that the
    existence of FaceTime video calling is not an unforeseen circumstance. FaceTime
    existed before 2015, and live video transmission generally existed long before
    FaceTime. Parliament was aware of both the existence of this technology and the
    language used to describe it. A recording is not a necessary precondition for
    the transmission of every type of image. But even if the Crown was correct on
    this point, it would not follow that the transmission of non-recorded,
    live-streamed images and the transmission of recorded images, would therefore
    now both be known as the transmission of recordings. There is no basis upon
    which to find that any change in technology or circumstance warrants
    reinventing the meaning of recording.

[182]

After considering the
    text, context, and purpose of s. 162.1, it can only be concluded that the
    section does not apply to live-streamed images. But for the prescribed
    definition, there would be an ambiguity in the meaning of image, in which
    case it could have indicated something that can be seen (e.g. a visual display)
    or recorded (and, typically, capable of repeated viewing). But the definition
    resolves the ambiguity in favour of the latter. This is a reasoned choice by
    Parliament, and this court is required to respect chosen means as well as ends.

D.

Absurd Consequences

[183]

Notwithstanding my
    conclusion about the intended meaning of s. 162.1, is there good reason to
    conclude that Parliaments purpose in enacting the legislation and the intended
    meaning of s. 162.1(2) have diverged in the application to FaceTime video
    calls? That is, does the above interpretation result in absurd consequences?

[184]

I do not think so. The
    harm Parliament had before it was the damage to persons whose privacy and
    dignity would be terribly abused by the unauthorized sharing of intimate
    images. Parliament enacted legislation to protect against this particularly
    serious violation of human dignity. But it did not intend s. 162.1 to stand as
    a complete code. It is supplemental to the voyeurism offences in s. 162.
    Section 162.1 does not capture, and was not intended to capture, every act by
    which one person injures others by exposing them to the view of third parties.
    It did not, for example, criminalize acts such as the accused opening the
    bathroom door and exposing the complainant to the view of the friends he
    invited into his apartment. Each of these friends was in the same position to
    record the complainant as any of his other friends who received a FaceTime
    call. Had they done so, each would have faced the same potential jeopardy under
    s. 162.

[185]

There would be nothing
    irrational or unreasonable about Parliament choosing to criminalize the
    transmitting of live, unrecorded images through s. 162.1. But it did not do so,
    and there is no good reason to conclude that this decision was unintended or
    that it undermines Parliaments purpose in enacting the legislation it did. The
    proper interpretation of s. 162.1 does not impair its functioning in
    prohibiting the dissemination of recordings.

[186]

The conduct complained
    of in this case is reprehensible. But exposing a person to the view of others
    is different than placing a recording that is capable of publication in the
    hands of third parties. A recording can be viewed an infinite number of times,
    by an unlimited number of people. A live-stream transmission cannot. It is not
    irrational or arbitrary for the criminal law to differentiate between them. Of
    course, a live-stream transmission is
capable
of being recorded, requiring only the
    simultaneous decision of the recipient of a FaceTime video call to record it.
    But such a recording would likely violate s. 162, and any sharing of that
    recording would violate s. 162.1.

[187]

The accused is not a
    sympathetic figure. On the facts alleged, he not only grossly violated the
    dignity of the complainant, he facilitated others in doing the same. He should
    have known what he was doing was seriously wrong. Although he was not charged
    under s. 162, the reason why is not immediately obvious.
[3]
However, even if
    there was no criminal prohibition corresponding to the accuseds conduct, it
    would not be a reason to distort the meaning of s. 162.1. As Stratas J.A.
    reminded in
Williams
, at para. 47, moral evaluation of the accuseds
    conduct cannot be allowed to displace the interpretation of the statute.
    Criminal offences have elements, and where those elements are not made out,
    judges are not authorized to substitute new ones.

[188]

To sum up, there is a
    methodology intended to structure and guide judicial interpretation of
    statutes. It directs judges to a body of law that places primacy on
    understanding the intended meaning of Parliament in enacting the statutory text
    that it did. The application of the modern principle in this case leads to the
    conclusion reached by the trial judge: s. 162.1 prohibits the transmission of a
    recording. It does not prohibit the transmission of images that are not
    recordings. A FaceTime video call operates by transmitting images that have not
    first been recorded and are never recorded in the course of transmission,
    although they are capable of being recorded by a recipient. The trial judge
    made no erroring in allowing the application for a directed verdict of
    acquittal.

III.

SUFFICIENCY OF THE EVIDENCE

[189]

One final point. The trial judge
    understood as well as the next person how an iPhone works. She did not require
    expert evidence to explain its user-level functioning. But by this point in her
    reasons, the trial judge had rejected the Crowns invitation to redefine a
    recording as a live-stream transmission, preferring the definition used by
    everyone else. The Crown thus faced an evidential hurdle. In order to defeat
    the directed verdict application, the Crown needed to establish that a FaceTime
    video call transmitted a recording as that word is ordinarily understood:
a depiction that outlasts the event it
    depicts  for however long  allowing the event to be viewed at some later
    time, whether once or multiple times.


[190]

But FaceTime, as far as the trial
    judge could tell, does not work in this way. (Note that this is not the
    question of whether a recipient of a FaceTime video call can make a recording
    of it. The fact that a transmission of a live-stream image can be recorded by
    its recipient does not mean it was a transmission of a recording rather than a
    previously unrecorded, live event.)  For the Crown to succeed, it would need to
    provide evidence that FaceTime functioned in a way
contrary
to what is commonly understood. The trial judge
    insisted that the Crown prove the elements of the offence. If the Crowns case
    rested on the technical  and highly doubtful  claim that FaceTime operated by
    recording or saving images somewhere and then transmitting them, then the Crown
    needed to produce some evidence of this. It did not. The trial judge made no
    error in requiring evidence on this point.

IV.

DISPOSITION

[191]

I would dismiss both
    the appeal against conviction and the Crowns appeal of the directed verdict of
    acquittal.

Released: January 22, 2021 (K.F.)

B.W.
    Miller J.A.





[1]
The trial judge heard and decided this application in September
    2018. Section 276(2) was amended effective December 13, 2018: S.C. 2018, c. 29,
    s. 21.
When the trial judge decided the application, s. 276(2) read:

(2)
In proceedings
    in respect of an offence referred to in subsection (1), no evidence shall be
    adduced by or on behalf of the accused that the complainant has engaged in
    sexual activity other than the sexual activity that forms the subject-matter of
    the charge, whether with the accused or with any other person, unless the
    judge, provincial court judge or justice determines, in accordance with the
    procedures set out in sections 276.1 and 276.2, that the evidence

(a)
is
    of specific instances of sexual activity;

(b)
is relevant to an issue at trial; and

(c)
has significant probative value that is
    not substantially outweighed by the danger of prejudice to the proper
    administration of justice.



[2]

Canada, Department of Justice,
Report to the
    Federal/Provincial/Territorial Ministers Responsible for Justice and Public
    Safety: Cyberbullying and the Non-Consensual Distribution of Intimate Images
(June
    2013), at pp. 14-15.



[3]
In commenting on this observation at para. 73 of her reasons, m
y
    colleague argues that s. 162 could not apply in the circumstances of the
    present case because the accused was not acting surreptitiously. It should be
    noted, again, that because there was no charge brought under s. 162, there were
    no submissions on this point and no adjudication. This court has not yet
    pronounced on the meaning of surreptitious in the context of s. 162. The
    interpretation of that section, when it is provided, must be determined using
    the methodology required by the modern principle. But although an authoritative
    statement about the meaning of surreptitious in the context of s. 162
    therefore cannot be given in these reasons, I reiterate that it is not obvious
    that a man who opens a bathroom door and livestreams someone in the position of
    the complainant while her attentions are concentrated elsewhere, is not acting
    surreptitiously. This remains the case even if the person who is being observed
    electronically soon becomes aware of it but is powerless to stop it.


