R. v. Verner, 2017 ONCJ 415

CITATION: R. v. Verner , 2017 ONCJ 415 DATE: May 8, 2017 Information No. 16-27055 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. WARREN VERNER R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE S.C. MacLEAN on May 8, 2017, at OSHAWA, Ontario APPEARANCES : K. Pollock Counsel for the Crown R. Greenway Counsel for Warren Verner MONDAY, MAY 8, 2017 R E A S O N S F O R J U D G M E N T MACLEAN, J. (Orally): If you would stand up, please Mr. Verner, I am ready to make my decision. I find you guilty as charged. You can have a seat while I go through my Reasons.

We will have to decide what to do about sentencing afterwards once I have given my explanation. Warren William Verner is charged that, on or about the 4 th day of January in the year 2016, at the City of Oshawa, in the Central East Region, did knowingly make available an intimate image of M.S., knowing that M.S. did not give her consent to that conduct, or being reckless as to whether M.S. gave her consent to that conduct, contrary to s. 162.1 of the Criminal Code of Canada . I will get into more details of the nature of the evidence here, but at its heart, what this case is about was Mr.

Verner being angry with M.S., perhaps because she had a new boyfriend, and after some kind of encounter between the two men occurred, within an hour, he was sending an image, a screen shot, so a still image, taken from a video that had been made surreptitiously of M.S. having intercourse with Mr. Verner. I will get into some more details about the context. It is quite clear to me that this was done to humiliate M.S. and out of anger, or jealously perhaps, on the part of Mr. Verner.

There was a very focused issue in this trial which was whether the image in question amounts to an intimate image as defined by the Criminal Code of Canada . There was no dispute that Mr. Verner had, in fact, sent this image to B.L. and no dispute that it happened on the day in question. So, identity is not an issue, and as I have said, the sole issue is whether the definition in the Criminal Code of Canada has been met. I will start by reading from the Criminal Code of Canada, s. 162.1(1) which is headed up, Publication of an Intimate Image without Consent. The

section reads as follows: “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” It is a hybrid offence, indictable or

summary. As I have said, the focused issue is really on subsection (2), the definition of intimate image. “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.” So, all three of those subsections, (a), (

b) and (

c) are conjunctive and all three must be proven beyond a reasonable doubt. One of the key issues in the argument before me was whether (

a) should be read conjunctively or disjunctively. The evidence was very brief. M.S. testified that she has known Mr. Verner and had dated him on and off for approximately three years. She had dated B.L. in between when her relationship with Mr. Verner was off.

On the date of the incident, which was January 4 th , 2016, the status of her relationship with Mr. Verner was that they had been broken up for just a few days, maybe three or four days. There was some kind of a confrontation that had occurred at the residence between B.L. and Mr. Verner. I want to say specifically, there was an assault count with respect to B.L. on the information that the Crown withdrew because B.L. did not attend as a witness. I am specifically ignoring that count and specifically ignoring whatever happened between the two men other than I accept there was some kind of a confrontation.

I want to make it clear I am not using that in any way and I do not know any of the details of that. It was agreed that would not be put before me. It just sets the backdrop to the sending of the photo; that is that something had happened between the men. After the incident, about an hour after whatever happened between B.L. and Mr. Verner, the image was sent to B.L. M.S. was present when the image came in on B.L.’s cell phone and she saw it on his screen. She said it was sent either by way of a text or a Facebook Messenger message to B.L.

She said she believed there were words that accompanied the image, but she can not recall right now what the words were. The image that we have is contained in Exhibits 1.1 and 1.2 and if this matter were to be reviewed, I would strongly encourage the reviewing Court to look at the electronic version of the image because the hard copy version is very poor quality and it is very hard to make out what is in it. I will describe the image in a moment. M.S. testified that she recognized the image as being from a videotape.

She had never seen the video, but you can see the bar at the bottom, it looks like it is a screen shot from a video and she – I am indicating that is what I observe on the image, but she said she was never aware that the video had been taken. She had never consented to the making of that videotape. It appears it was captured surreptitiously. She did not know the video existed until this image from that video was sent. She indicated she recognized herself in the image, she said it was a videotape of Mr. Verner and herself having intercourse.

While she could not remember the exact words sent along with the message, I am paraphrasing now, that Mr. Verner said something to B.L. along the lines that there was more of the video. M.S., I accept that she never gave Mr. Verner any permission to share this image with anyone. In terms of the context in which the image had been sent, when she went to the police station that day, she was getting messages from Mr.

Verner, continuing to get messages, although as I said the earlier message was sent to her friend at that time, B.L., and the messages were along the lines that she was a cheater and that she was a bad person. He was rambling on, as she put it. She, again, went back to saying he had said in the message that there was more than just this one image. She felt humiliated when she saw that it had been sent.

She saw that it had been screen shotted from Facebook and saw that there were comments on Facebook; along the right hand side you can see, you can’t read the comments, but she said there was a friend, a mutual friend that they both had, named D.G., who had commented on it. It was made public. In addition to it being sent to B.L., it was made public on Facebook for some period of time. When she went to look at the image, she was blocked from his account or his profile, so she could not view it. It is completely hearsay, but there is some information that the image may have been removed fairly quickly after.

She could tell from the screen capture, in terms of the profile, who had posted the image, and it was Mr. Verner. There were no conversations or chats between her and Mr. Verner about the image that she can recall.

Apart from some credibility issues on relationship issues, there was no challenge to these key parts of her evidence in respect of the intimate image. In terms of what is seen on the image itself, we can see M.S. leaning over the bed, on her stomach, she is nude, from everything I can tell in the image, there is a male standing just to her left, we see, it looks like, his back and part of his arm; he also appears to be naked although we can not see all of him. His right hand is on her back at the right side of her back at the waist area.

When I look back to the definition, I find that the Crown has proven beyond a reasonable doubt that at the time of this recording, that is the making of the videotape, there were circumstances, and the Crown has proven both (

b) and (

c) beyond a reasonable doubt, that at the time of this recording, there were circumstances that gave rise to a reasonable expectation of privacy. This was a videotape made in Mr. Verner’s bedroom when no-one else was present, when she did not even know she was being recorded, or she did not know they were being recorded, and she never gave permission or consent for it to be distributed. I find that in all of those circumstances, there is no other conclusion, in my view, to find but that the circumstances give rise to reasonable expectation of privacy. Subsection (

c) says in respect in which the person depicted retains a reasonable expectation of privacy at the time the offence is committed. Nothing changed between the time the image was created and when it was posted on Facebook and sent to B.L. The only remaining issue is whether the Crown has proven beyond a reasonable doubt that the image depicted the items listed in subsection (a). I will re-read it. “(

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;” Mr. Greenway, on behalf of the defence, argues that the word nude is conjunctive with exposing of genital organs, anal region or breasts. The Crown submits that the word nude is disjunctive and that the offence can be committed in one of three ways; either where the image shows the person nude or where the image shows that a person’s genital organs, anal region or breasts have been exposed or where the image shows the person engaged in explicit sexual activity. During submissions there was a discussion about statutory

interpretation. On the plain reading or plain meaning of Parliament, it is my understanding that Parliament intended to capture nudity in addition to the other things described. I will start by reading from Hansard. Apart from the plain meaning of the legislation which I – statutory construction in my view, it should be read disjunctively. I will look at the Hansard which was provided by the Crown, Ms. Pollock. It is 41 st Parliament, 2 nd Session, Edited Hansard, Number 025, Contents, Wednesday, November 27, 2013, House of Commons, Volume 147, Number 025, 2 nd Session, 41 st Parliament.

The Honourable Peter MacKay, Minister of Justice and Attorney General of Canada is speaking with respect to Bill C-13 which is

an act to amend the Criminal Code of Canada et cetera. In terms of the purpose of this legislation, I will start reading from page two out of six.

There is an introduction with respect to cyberbullying. Middle of the second page, it reads: “Canadians want to know what can do to deal with cyberbullying. Questions have been raised about whether the Criminal Code deals adequately with this type of behaviour and recent technological advances. Currently, the Criminal Code can in fact address most of the serious forms of cyberbullying through, for example, existing offences of criminal harassment per

section 264, uttering threats per

section 264.1 or identity fraud, found in

section 403. However, there is no offence in the Criminal Code that specifically addresses the contemptible form of cyberbullying that has emerged, involving the distribution of sexual images without the consent of the person depicted in that image. Addressing this gap in the Criminal Code is one of the goals of Bill C-13. The bill proposed a new Criminal Code offence prohibiting the non-consensual distribution of intimate images.

Essentially, this offence would prohibit the sharing of sexual or nude images without the consent of the person depicted.” I paused to indicate there that the Minister uses the disjunctive. Sexual or nude. Then it goes on, the Minister says: “It may be useful to better understand how this behaviour typically comes about. It usually begins, in some sense, with a non-criminal context of perfectly lawful, consensual recording of intimate images in a private setting. I specifically set aside any images depicting an underage youth.

These images may be subsequently transmitted electronically to a partner, a practice commonly known as “sexting”. Upon the breakdown of the relationship, however, one of the known partners may distribute these images to third parties without the consent of the person depicted in the image. It is now commonly known as “revenge porn”. It is important to note that this offence is not intended to criminalize sexting when it is done with consent.

Rather it is the unauthorized, non-consensual distribution of these images that is targeted in this new offence.” I accept that was Parliament’s intent in bringing the legislation into existence. It appears to cover the situation that we are dealing with here, quite clearly. In terms of the definition, if Parliament had intended that the word nude be read in conjunction with exposing genital organs, anal region or breasts, the normal statutory

interpretation would be the word and would be placed after the word nude . I read this

section disjunctively. In other words, the offence could be committed in one of three ways; where the person is nude; where the person’s genital organ, anal region or breasts are exposed; or where they have engaged in explicit sexual activity. The defence had argued that the word nude was in combination with the other descriptions of the type of body parts that would have to be exposed.

First of all, the plain reading, in my view, is disjunctive, but secondly, to interpret it that way seems to fly in the face of the Minister’s intent when he expressed – or the Government’s intent, when he expressed that it was nude or sexual. It is meant to capture all aspects of this type of material because, for example, someone might send a nude picture of themselves that is then used for this revenge porn; that is really what I understand to be the purpose.

In this particular case, it is my finding that the Crown has proven beyond a reasonable doubt that this is a nude image of this young lady that was distributed, in the way that I have described, for the purpose of revenge porn. On that basis, this gentleman would be found guilty and is found guilty.

A separate argument that was raised was if nude had to be read in conjunction with the other aspects, because in this case we do not see genital organs, anal region or breasts, that I then have to look at whether the photo shows that engage in explicit sexual activity. The definition of explicit sexual activity was examined. It is my view that this would meet the definition of explicit sexual activity and that the Crown has proven that beyond a reasonable doubt as well.

It is obvious to me that from the still image that was captured here, that while we do not see actual intercourse occurring at the time of this portion of the video, I accept everything that M.S. told me, that this was an excerpt of a video where they were engaged in an explicit sexual activity which was intercourse. In terms of guidance with respect to the meaning of explicit sexual activity, we have a few cases. I’ll start with the case of my Judicial colleague from Newmarket, Justice Tetley, in the case of R. v. R.(T.) and that is [2011] O.J.

No. 6652, decided September 19, 2011, in a different context; it is in relation to voyeurism. It is a non-suit application, so it is not the same section, but I note that in

section 162, the definition of voyeurism includes the same language under subsection (1)(

a) it says, “the person is in a place in which a person can reasonably 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;” The facts of the case before Justice Tetley involved a question about explicit sexual activity, but, in going back to the earlier argument, I do note that in paragraph 3, part of what Justice Tetley refers to, when he is reading this section, is a reference to recording a person in a place; “...in which that person can reasonably be expected to be nude, or for instance, to expose his or her genitalia, anal region, or breast, or to be engaged in sexual activity.” It appears Justice Tetley was reading that

section disjunctively which is the same line which I had before me. In going forward in terms of the analysis, I don’t intend to read the whole thing, but Justice Tetley very clearly outlines the position of the parties, but the analysis and conclusions starts at paragraph 21 and I will read that.

Justice Tetley says this: “Having now had an opportunity to read and review the entirety of the trial transcript, the cited case law, the relevant provisions of the Criminal Code , and both the oral and written submissions of counsel, the following conclusions are warranted.” Paragraph 22: “Firstly, the term “explicit sexual activity”, as denoted in s. 162(1)(a), must be defined in a way that gives meaning to the term “explicit”.

As parliament has chosen to describe the offending form of sexual activity by the word “explicit”, it is reasonable to conclude something more than an ambiguous depiction of sexual activity must be required in order for the offence alleged to be viable.” Paragraph 23: “Secondly, the term “explicit” must be given meaning in accordance with the usual definition of the word. This would suggest to me that nothing is left to be implied or imagined, or in other words, the sexual activity must be established to be “evident”, “clear”, and “definite”.”

Paragraph 24: “When these considerations are referenced within the context of the entirety of the trial record here, I conclude the acknowledgedevidence of K.B. and that of the complainant herself, support the Crown’s assertion that at least some of the images in issue, particularlythose featuring a naked complainant kneeling on all fours on the applicant’s bed in a sexually provocative fashion, may serve to providea factual basis for a reasonable person to conclude sexual activity of an explicit nature is depicted.” Paragraph 25: “I accept the Crown’s submission, for the purpose of the determination of this application, that the depiction of actual touching of asexual nature is not required to establish this offence.

The depiction of the naked complainant in the applicant’s bedroom while on theapplicant’s bed, in circumstances where the images were secured during the course of an intimate relationship between the applicant andcomplainant, are factors that might reasonably be relied upon to conclude sexual activity either has occurred, is occurring, or is about tooccur.” Then Justice Tetley goes on to dismiss the non-suit. Justice Tetley was assisted by, as am I, the cases that deal with child pornography. I will start with the decision of the Ontario Court of Appeal in R. v. Smith [2005] O.J. No. 2811.

In particular, those paragraphs at 31 and following right through to 50. The paragraph of that is of most relevance, I have turned my mind to all of it, but I will read, in particular, paragraph 46. “Similarly, in determining whether material depicts explicit sex, the trier of fact must consider the circumstances and context of thematerial. Even where no sexual act is depicted, material may still depict explicit sex. The trier of fact will determine whether areasonable person who viewed the material would determine, in all the circumstances, that the material was explicitly sexual in nature.

The part of the body depicted; the nature of the depiction; the context of the depiction; the accompanying dialogue, words, or gestures;and all other surrounding circumstances will be relevant to this determination.” Applying that to the facts before me, we have

an act of intercourse taking place which is videotaped. It is happening in the accused’sbedroom. The parties are positioned near the bed. They both appear to be nude, although we can not see all of Mr. Verner, he appears tobe nude as is she. We have her evidence that this excerpt, as I can call it, of the video which is a screen shot is taken in the context of anact of sexual intercourse. It is my view, that that set of circumstances creates a situation in which the Court can conclude that thematerial is depicting explicit sex. In R. v. Sharpe in the Supreme Court of Canada, dealing with child pornography, 2001 SCC 2 , [2001] S.C.J. No. 3, again wehave

definitions of explicit sex in the context of child pornography. It is under subheading 3, paragraphs 44 and following. I am mindful of the Supreme Court of Canada’s

definitions in paragraph 49 which indicate what the law does not catch such as thingslike photos of teenagers kissing at a summer camp and things of that sort. It is not meant to catch casual sexual contact, like touching,kissing, hugging. When somebody is videotaping

an act of sexual intercourse, that is capturing an explicit sexual activity and in this context, whensomebody is publishing an image, excerpted from that, it is clear to me that the intention is to put up in public or send to a friend, in thiscase of this lady, to say, “I have got an image of us having intercourse. You know it and I know it.” I do not know what other inference there can be drawn from this than that he intended that message be sent to her and to embarrass her bysending it to her boyfriend and putting it out publicly.

I do not think it is even necessary for me to have determined whether this is explicit sexual activity as I am satisfied that the nudity has been proven. I find in either manner the Crown has proven its case beyond a reasonable doubt. **********