



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. Trinchi, 2019 ONCA 356

DATE: 20190502

DOCKET: C63038

Juriansz, Pepall and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Luigi Trinchi

Appellant

Matthew R. Gourlay, for the appellant

Jennifer Epstein, for the respondent

Heard: March 7, 2019

On appeal from the finding of guilt made on June 17, 2016
    and the conviction entered on November 10, 2016 by Justice John S. Fregeau of
    the Superior Court of Justice.

Juriansz J.A.:

A.

Introduction

[1]

The appellant succinctly summarizes the question before the court as
    follows: two people in a long-distance romantic relationship engage in an
    intimate webcam video chat. Both people are naked. Both know they are on video.
    One party, unbeknownst to the other, takes a still photo of his partner from
    the live video stream. Does he thereby commit the
Criminal Code
,
    R.S.C. 1985, c. C-46 offence of voyeurism?

[2]

The appellant and the complainant were in an intimate relationship between
    March 2010 and September 2011. The appellant lived in Toronto and the complainant
    lived in Thunder Bay. As they could see each other in person only occasionally,
    they often engaged in Skype video conversations via computer (video chats).
    Sometimes the complainant willingly appeared nude before the computer in
    sexually provocative poses. On some of these occasions, the appellant took
    screenshots of the naked complainant and saved them on his computer. The complainant
    testified that she understood that her image was being captured as video and
    streamed over the Internet to the appellant, but that she did not know he was
    taking screenshots and preserving nude images of her as still photos.

[3]

After the complainant ended the relationship, emails with nude photos of
    her were emailed to many people. These nude photos were the screenshots the
    appellant took during their video chats. The appellant was charged with six
    offences arising from the distribution of the nude photos of the complainant.
    He was also charged with voyeurism for taking the screenshots in the first
    place. At trial, the appellant did not testify, but led evidence that another
    girlfriend had the motive, opportunity and propensity to distribute the nude
    photos of the complainant. Because this evidence raised a reasonable doubt for the
    trial judge, he acquitted the appellant of the six charges relating to the
    distribution of the nude photos. However, the trial judge had no doubt that the
    appellant had taken the photos and convicted him of voyeurism.

[4]

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

B.

Section 162(1) of the
Criminal Code

[5]

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

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

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

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

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

[6]

Parliament enacted s. 162(1) of the
Criminal Code

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

[7]

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

[8]

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

[9]

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

[10]

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

[11]

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

[12]

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

[1]

The accused observed or
    recorded the subject;

[2]

The accuseds observation or
    recording was done surreptitiously;

[3]

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

[4]

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

[5]

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

[13]

Elements
    1, 4 and 5 are not in issue in this appeal. The appellant does not dispute he
    took screenshots of the complainant, the complainant was naked and exposing
    sexual parts of her body when he did so, and he took the screenshots for the
    purpose of recording the complainant in such a state. In this appeal, the
    issues are whether the complainant had a reasonable expectation of privacy in
    the circumstances and whether the appellant acted surreptitiously.

C.

Reasonable expectation of privacy IN THE CIRCUMSTANCES

(1)

The law

[14]

The
    hearing of this appeal was deferred until the Supreme Court rendered its
    decision in
Jarvis
.
Jarvis
concerned the interpretation of
    the phrase reasonable expectation of privacy in s. 162(1). The phrase, as the
    Supreme Court pointed out, must be interpreted in light of Parliaments object
    in enacting the voyeurism offence. Parliaments object was to protect
    individuals privacy and sexual integrity from new threats posed by the abuse
    of evolving technologies. The basic question is whether in the circumstances the
    person observed or recorded would reasonably expect not to be the subject of
    the type of observation or recording that in fact occurred. The Supreme Court
    said that basic question should be answered by taking into account all the
    circumstances in which the observation or recording took place.

[15]

In
Jarvis
, a high school teacher used a concealed camera to make video
    recordings of female students in classrooms, hallways, the cafeteria, and other
    locations around the school. The teacher argued the female students in these
    locations would certainly have known they could be observed by others and so
    did not have a reasonable expectation of privacy. The Supreme Court decided
    otherwise. The Supreme Court engaged in a contextual assessment of the totality
    of the circumstances and specifically discussed nine circumstances relevant in
    the case. The Supreme Court emphasized that what circumstances are relevant
    will depend on each individual case. Though the circumstances of this case are
    quite different from those in
Jarvis
, it is still instructive to
    enumerate the specific circumstances the Supreme Court considered in
Jarvis
,
    at para. 29:

(1) the location the person was in when she was observed or
    recorded;

(2) the nature of the impugned conduct (whether it consisted of
    observation or recording);

(3) awareness of or consent to potential observation or recording;

(4) the manner in which the observation or recording was done;

(5) the subject matter or content of the observation or
    recording;

(6) any rules, regulations or policies that governed the
    observation or recording in question;

(7) the relationship between the person who was observed or
    recorded and the person who did the observing or recording;

(8) the purpose for which the observation or recording was done;
    and

(9) the personal attributes of the person who was observed or
    recorded.

[16]

After
    discussing these matters, the Supreme Court concluded the persons recorded by Mr.
    Jarvis were in circumstances that gave rise to a reasonable expectation of
    privacy for the purposes of s. 162(1). While the subjects could be casually
    observed, or even stared at, in the common areas of the school, the school was
    still not an entirely public place. The subjects reasonably had the expectation
    they would not be the focus of the permanent visual recordings Mr. Jarvis made.
    They may have expected to be captured incidentally by the schools security
    cameras, but they did not expect to be recorded by a hidden camera focused at
    close range on their faces and breasts. Individuals, the Supreme Court
    observed, are understood to have heightened privacy expectations with respect
    to intimate or sexualized parts of the body: para. 82. Further, the videos
    were recorded in breach not only of the relationship of trust between the
    teacher and the students, but also in breach of formal school board policy.

(2)

Application to this case

[17]

The
    appellant stresses the circumstances of this case are different. Here, he was
    involved in an intimate relationship with the complainant. She willingly and
    knowingly appeared on camera in their video chats for the express purpose of
    displaying herself to him naked and in sexual poses. The appellant acknowledges
    that engaging in sexual activity in ones own bedroom is a circumstance that
    attracts a high expectation of privacy. However, he argues the complainant
    admitted him within her circle of privacy by voluntarily exposing herself, knowing
    she was doing so through a camera, a device the very purpose of which is to capture
    images. He submitted that Parliament created the offence to apply to the
    electronic peeping tom, not to an intimate partner.

[18]

The
    argument is unpersuasive. Wagner C.J. in
Jarvis
indicated the
    voyeurism offence can indeed apply to a consensual sexual partner admitted within
    ones zone of privacy. He explained at para. 38:

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

[19]

This
    example, it seems to me, provides a short and direct path to the conclusion
    that the complainant had a reasonable expectation the appellant would not take
    screenshots of their consensual sexual activity. It should not make a
    difference that their consensual activity took place in virtual space rather
    than in a physical room. She necessarily expected to be observed by the
    appellant in the live-streamed video, but did not expect he would make a
    permanent recording of her naked.

[20]

A
    detailed analysis of all the circumstances leads to the same conclusion.

[21]

I
    begin with the complainants subjective expectation as accepted by the trial
    judge. The complainant disrobed in the privacy of her bedroom to engage in
    sexual activity while video-chatting with an intimate partner. She thought the video
    chats were live and in the moment conversations over the Internet. Her
    subjective expectation was that the appellant would see a fleeting image of her
    on his computer screen in real time. She did not know and did not expect that
    the appellant would make any permanent recording of her naked body. At trial, expert
    evidence confirmed that video chats on Skype are not routinely captured or
    preserved anywhere.

[22]

The
    trial judge accepted the complainants testimony that she had no idea that the
    appellant was taking screenshots of the live-streamed video. The trial judge also
    accepted the complainants testimony that during their 18-month relationship,
    the appellant never once told her that he was capturing permanent still images of
    her naked body and saving them on his computer. Had she known, she testified
    that she would have been furious and stopped it immediately.

[23]

The
    next question is whether the complainants subjective expectation was reasonable
    in the circumstances.

[24]

The
    appellant pointed out a screenshot may be easily taken by depressing a single
    key. He argued the complainant must be taken to have understood this and to
    have undertaken the risk that her partner in the sexualized video chat might
    take a screenshot of her. The analysis is not that simple. The Supreme Court at
    para. 68 of
Jarvis
said the question whether a person can reasonably
    expect not to be the subject of a particular type of observation or recording
    cannot be determined simply on the basis of whether there was a risk that the
    person would be observed or recorded. Rather, the question should be answered
    in light of the norms of conduct in our society.

[25]

Two
    norms are especially pertinent in this case.

[26]

The
    first is that individuals privacy expectations for some body parts are
    reasonably higher than for others. The exposure of intimate body parts in the
    privacy of a bedroom attracts a high expectation of privacy. Here, the
    complainant was naked in her own bedroom and allowed only the appellant to
    observe her during the video chat.

[27]

Second,
    there is a distinction between mere observation and recording a permanent image.
    This distinction is critical in this case. In
Jarvis
, the Supreme
    Court stated the broad principle that the intrusion into our privacy that
    occurs when a person hears our words or observes us in passing is fundamentally
    different than the intrusion that occurs when the same person simultaneously
    makes a permanent recording of us and our activities. The Supreme Court
    pointed out that a visual recording captures detail in a permanent form that
    can be accessed, edited, manipulated and studied by the person who created the
    recording and that can be shared with others: para. 62.

[28]

Wagner
    C.J. also pointed out a recorded image can be shared with people whom the
    subject of the recording would not have willingly allowed to observe her in the
    circumstances in which the recording was made: para. 74. This case illustrates
    the harm that can result from making a permanent recording. The screenshots
    taken by the appellant were later distributed to many of the complainants
    professional and personal contacts.

[29]

Wagner
    C.J. explained that if there were no distinction between observation and
    recording, s. 162(1) would not apply to the non-consensual recording of a
    sexual partner engaged in sexual activity and the subsequent distribution of
    the recording. That is because s. 162(4) makes it an offence to distribute a
    recording one knows was obtained
by
    the commission of an offence under s. 162(1).
Wagner C.J.
said this was the very
type of
    conduct that initially spurred the legislative reform leading to the enactment
    of s. 162(1), citing
Voyeurism as a Criminal Offence: A Consultation Paper
,
    at p. 6.

[30]

I
    am satisfied the complainant was entitled to reasonably expect the appellant
    would not record their sexual activities in virtual space without her
    consent. The conclusion the complainant had a reasonable expectation of privacy
    in the circumstances of this case is consistent with Parliaments object in
    enacting the voyeurism offence to protect individuals' privacy and sexual
    integrity, particularly from new threats posed by the abuse of evolving
    technologies.
[1]

D.

SURREPTITIOUSLY and the mental element OF THE OFFENCE OF
    VOYEURISM

[31]

Section
    162(1) requires that the person who observes or makes a visual recording do so
    surreptitiously.
Jarvis

is the only voyeurism case decided by
    the Supreme Court, and the meaning of surreptitiously was not at issue as it
    was conceded. Mr. Jarvis had used a miniature camera hidden in his pen.

[32]

The
    appellant submits the trial judge in this case erred in law in dealing with the
    mental element of voyeurism by not giving proper effect to the word surreptitiously.

(1)

The appellants position on surreptitiously

[33]

The
    appellant submits the trial judge, in deciding the appellant acted
    surreptitiously, erred by focusing on the complainants perspective and the
    fact that she did not consent to the screenshots. He submits that a subjects
    lack of consent to being recorded is not an element of the offence and is
    insufficient to prove the accused acted surreptitiously.

[34]

The
    appellant cites the comment of Rowe J., writing for the concurring minority in
Jarvis

at para. 139, that the reasonable expectation of privacy element and the
    surreptitiously element should be kept distinct. Rowe J. said surreptitiousness
    relates to the actions of the observer, while the reasonable expectation of
    privacy pertains to the individual being observed or recorded. Rowe J. gave
    the example of a person approaching a woman and pointing a camera at her body
    at close range. This action would invade the womans reasonable expectation of privacy
    but would not satisfy the surreptitiousness element in s. 162(1). He added
    another example of the opposite. A person in the public area of a shopping mall
    who was recorded by concealed security cameras could not be said to have a
    reasonable expectation of privacy with respect to the recording, even though it
    had been captured surreptitiously.

[35]

The
    appellant says that Rowe J.s comments provide a useful lens through which to
    consider the meaning of surreptitiously. It is not enough, as the trial judge
    found, that the complainant did not at the time consent to the recording and in
    fact did not have any knowledge the recording was being made. The perspective
    of the accused is central. In order to establish the offence, the Crown must
    prove the accused had the state of mind of intending to act surreptitiously.

(2)

The Crowns position on surreptitiously

[36]

The
    Crown submits that the meaning of surreptitiously advocated by the appellant
    would fail to achieve the object of the legislation. The Crown takes the
    position that the mental element of the crime of voyeurism is knowledge. That
    is, the prosecution can establish an accused acted surreptitiously by proving
    the subject was unaware she was being recorded, and the accused knew or was
    wilfully blind to the fact the subject was unaware. The Crown says any
    recording made without a subjects knowledge interferes with her sexual
    integrity, whether or not the accused intended to conceal the recording.

[37]

The
    Crown emphasizes that new risks of abuse have been created by current and
    emerging technology. Technology has changed how recordings are made. Individuals
    no longer know and have no way of knowing when another is employing technology
    to record them. Miniature cameras that may be concealed or disguised are
    readily available. People are habituated to the presence of computers and smart
    phones, and may not be aware these are being used to record them. A persons loss
    of sexual integrity flows directly from the fact she was recorded without her
    knowledge, irrespective of whether the accused took some active steps to hide what
    he was doing. Recording a person without her knowledge deprives her of the
    opportunity to choose whether to allow a permanent recording to be made. Individuals
    need to know whether they are being observed or recorded to keep control of
    their sexual selves and protect their sexual integrity.

[38]

The
    Crown says only its approach will give effect to Parliaments intent in
    enacting the voyeurism offence to protect individuals privacy and sexual
    integrity. The Crown says requiring the prosecution to prove the accused
    intended to act surreptitiously would unduly narrow the provisions
    application.

[39]

The
    Crown offers the example of an accused, who with his smart phone apparent on
    his bedside table, records consensual sexual activity with his partner without his
    partners knowledge. In such a case, the Crown says the accused should not be
    absolved of voyeurism even though he could argue he did nothing to conceal the
    smart phone.

[40]

In
    order to ensure that such situations are within the ambit of the voyeurism
    offence, the Crown submits that the mental component of surreptitiousness must
    be knowledge: did the subject know she was being observed and recorded, and
    importantly, did the observer know or was he wilfully blind to the fact that
    the subject was unaware she was being recorded?

(3)

The meaning of surreptitiously

[41]

There
    is little judicial consideration of the meaning of surreptitiously. This is not
    surprising because whether the accused has acted surreptitiously is typically
    not an issue in voyeurism cases. In the typical voyeurism case, the accused is a
    third party who has used a hidden camera. The use of a hidden camera will
    generally establish surreptitiousness. In this case the complainant knew the
    accused was viewing her through a webcam.

[42]

The
    words surreptitious or surreptitiously appear in other provisions of the
Criminal
    Code
.
Section 191(1) makes it an offence to possess, sell or
    purchase equipment the design of which renders it primarily useful for the
surreptitious
interception of private communications. Section 364(1) makes it an offence to
    fraudulently obtain food, beverage or accommodation. Section 364(2) creates a
    presumption of fraud when the accused
surreptitiously
removes or
    attempts to remove his baggage from the establishment, or has
surreptitiously
left the premises.

[43]

These
    provisions give no reason to believe surreptitiousness has a special technical
    meaning in the
Criminal Code
. Surreptitiously in s. 162(1) must be
    given its ordinary meaning.

[44]

The
    definition of surreptitious from the
Canadian Oxford Dictionary
, 2d ed.,
was quoted by the court in
R.
    v. Lebenfish
, 2014 ONCJ 130, 10 C.R. (7th) 374, at para. 25: obtained,
    done, etc. in secret or by stealth or by illicit means; clandestine. The trial
    judge in this case quoted the definition of surreptitious conduct from
Blacks
    Law Dictionary
, 9th ed.
:
    unauthorized and clandestine; stealthily and usually fraudulently done.

These
    are useful definitions, but they use other words, such as stealthily and
    clandestinely, which themselves may invite definition. In oral argument, the appellants
    counsel accepted the definition of surreptitiously in the online
Oxford English
    Dictionary
, at
http://en.oxforddictionaries.com
,
    which uses
simpler words: [i]n a
    way that attempts to avoid notice or attention; secretively.

[45]

The
    question whether the word surreptitiously as used in s. 162(1) included
    intent as part of its meaning came before this court in
R. v. M.E.N
,
    2014 ONCA 69, leave to appeal refused, [2015] S.C.C.A. No. 278. The facts of
    the case are not apparent as the appeal was dismissed in brief reasons. The
    court stated, at para. 4, [a]ssuming, without deciding, that the word surreptitiously
    does include intent as part of its meaning, in our view the trial judge found
    that the appellant intended that the complainant not be aware that she was
    being photographed.

[46]

I
    am satisfied that the ordinary meaning of the word surreptitiously does include
    intent as part of its meaning. A person who observes or records with the
    intention that the subject not be aware that he is doing so, is attempting to
    avoid notice or attention. Moreover, I consider
M.E.N
.s articulation
    of the mental element to be apt. The
mental state required by the word surreptitiously in s. 162(1) is the
intent
    the subject not be aware that she is being observed or recorded. In a
    prosecution under s. 162(1)(b), the Crown may prove the accused acted
    surreptitiously by proving that he observed or recorded the subject with the
    intention she be unaware he was doing so.

[47]

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

[48]

Understanding
    the word surreptitiously in this way would not prevent a successful
    prosecution in the Crowns example of the smartphone on the accuseds bedside
    table recording consensual sexual activity. In the example, the accused would
    have had to initiate the smart phones video recording mode and position the device
    so its camera focused on the sexual activity. Where the complainant testifies
    that she did not consent to being recorded and was unaware the recording was
    being made, and without evidence to explain the positioning and active state of
    the phone, the fact-finder would have an adequate basis to infer that the
    accused intended the complainant be unaware he was recording her.

[49]

In

Lebenfish
, the trial judge found that the accuseds picture-taking
    was not objectively surreptitious. He found it unnecessary to consider
    whether the accused had acted subjectively surreptitiously. Such an analysis
    leads to unnecessary complication. The word "surreptitiously refers not
    to what the accused does, but to the state of mind with which he does it. The required
    criminal intent for the surreptitiously element in s. 162(1) has been proven
    where the Crown establishes that the accused intended the complainant be
    unaware he was observing or recording her.

(4)

Application to this case

[50]

The
    appellant submits that the trial judge erred in two ways. First, he says the
    trial judge assessed the surreptitiousness issue from the perspective of the
    complainant, rather than focusing on the appellants state of mind. Second, he
    says there was no evidence to support the trial judges finding the appellant
    acted contrary to the parties tacit agreement that the video chats would not
    be preserved in any manner.

[51]

The
    trial judges reasons must be read as a whole. After finding that the
    complainant was in circumstances that gave rise to a reasonable expectation of
    privacy, the trial judge turned to the question whether the appellant had acted
    surreptitiously. He began by noting the conduct of the appellant in this case
    was strikingly different to that in
Lebenfish
.
I take the
    observation to be that while Mr. Lebenfishs picture-taking was apparent to
    others at the beach, the appellant took the screenshots in a way that was not apparent
    to the complainant.

[52]

The
    trial judge set out the circumstances in which the screenshots were taken. The
    appellant and complainant were engaging in intimate Skype video sessions
    during which [the complainant] was nude. He noted the complainants
    perspective. She had only agreed to her nude images being transmitted live
    to the [appellants] computer. The appellant had captured still nude
    photographs of the complainant from the video chats without her consent or
    knowledge.

[53]

The
    trial judge observed the appellants conduct exceeded the parameters of what
    had been agreed to by two intimate partners. The two intimate partners had
    agreed to connect through the Internet for video chats. The complainant had
    agreed to her nude images being live-streamed to the appellants computer.
    These were the parameters of what the parties had agreed to. The taking of the
    screenshots exceeded those parameters.

[54]

As
    the appellant points out, there was no explicit evidence of any agreement
    between the complainant and appellant that no screenshots would be taken.
    However, I do not accept that the trial judges remark that the appellant had
    acted contrary to the parties tacit agreement is unsupportable. The tacit
    agreement to which he referred is that which exists between all intimate
    partners to consensual sexual activity  namely, that neither one will exceed
    the parameters of what has been agreed to without obtaining consent. There is
    nothing contentious about this. In in-person consensual sexual relations, exceeding
    the parameters of what has been agreed to would likely breach the criminal law.

[55]

Moreover,
    the trial judge did not err by unduly focusing on the complainants state of
    mind. The trial judge did address the appellants state of mind. He repeatedly
    stated the appellant had acted secretly and that his actions were
    clandestine. The appellants state of mind could be inferred from the circumstantial
    evidence. The complainant did not know the screenshots were being taken. The
    appellant never told the complainant he was taking screenshots; the subject of
    taking screenshots never came up during the parties 400-odd video chats. The
    complainant could see the appellant during their video chats, and he had taken
    the screenshots in a way that the complainant had not noticed. After taking the
    screenshots the appellant never mentioned them. Her lack of awareness could
    also be reasonably expected under the totality of these circumstances. These
    facts supported the trial judges inference that the appellant had intended
    that the complainant not know he was taking screenshots of her.

[56]

There
    is one further matter left to address. On appeal, the appellant points to a
    text-based Skype message he submits should have alerted the complainant to the
    fact that he was "taping" her every night. On appeal, for the first
    time, he says this is relevant circumstantial evidence as to whether he
    intended the complainant not know he was taking the screenshots. He argues that
    the trial judge's reasons are deficient because they contain no mention of this
    text message.

[57]

I
    would not give effect to this argument. Only a snippet of the entire conversation
    was introduced, and without any context. Defence trial counsel used the
    snippet, unsuccessfully, in cross-examining the complainant. The trial judge,
    as he was entitled to, accepted the complainants clear and strenuous claim
    that the appellant had never told her he was taking screenshots during their video
    chats. Defence trial counsel did not mention the snippet in closing argument
    despite having ample opportunity to do so in response to questions by the
    court.

[58]

It
    is elementary that a trial judge does not have to discuss every piece of
    evidence in his or her reasons. The trial judge did not err by not dealing with
    an inconsequential item of evidence not mentioned by defence trial counsel in
    his closing address.

[59]

On
    a final note, I acknowledge in this case that the analyses of the reasonability
    of the complainants expectation of privacy and the appellants
    surreptitiousness draw on some of the same circumstances. Wagner C.J. in para. 33
    of
Jarvis
recognized this might be so. He noted that surreptitiousness
    could be one of the considerations taken into account in assessing whether the expectation
    of privacy was reasonable, though it should not be allowed to overwhelm that
    assessment. As Rowe J. stated in para. 139: The two concepts are related in
    the sense that one informs the other; but the concepts are distinguishable and
    remain distinct. While the two elements inform each other in this case, they
    may not in other circumstances.

E.

conclusion

[60]

For these reasons I would
    dismiss the appeal.

Released
:
RGJ
    MAY 2 2019

R.G. Juriansz J.A.

I agree. S.E. Pepall J.A.

I agree. P. Lauwers J.A.





[1]
At a late stage of the preparation of these reasons, the Supreme Court released
    its decision in
R. v. Mills
, 2019 SCC 22.
Mills
deals with the
    expectation of privacy in electronic text communications in the context of
    internet luring under s. 172.1 of the
Criminal Code
. The circumstances
    of
Mills
drastically differ from this case. None of the four sets of
    reasons in
Mills
referred to the
Jarvis
decision. In my view
Mills
has no relevance to this case.


