Her Majesty the Queen - v. -, 2016 SKPC 113

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 113 Date: August 19, 2016 Information: 90119869 Location: La Ronge _____________________________________________________________________________ Between: Her Majesty the Queen - and - D.R. Appearing: Mr. Greg Lyndon For the Crown Mr. Murray Pelletier For the Accused JUDGMENT R.J. LANE , J [ 1 ] This is the decision on the trial of D.R..

As the factual recitation was already prepared in the decision on the voir dire , I am simply going to repeat those paragraphs that provide a factual foundation for this case. [ 2 ] D.R. is charged on Information 90119869 that on or about the 17 th day of January, A.D. 2014 at La Ronge in the Province of Saskatchewan did surreptitiously make a video recording of R.M.M. who were in circumstances that give rise to a reasonable expectation of privacy, to wit: sleeping in bed, contrary to s. 162(5) of the Criminal Code . The Crown has proceeded summarily.

[ 3 ] The Crown is represented by Mr. Greg Lyndon and the accused is represented by Mr. Murray Pelletier. The trial commenced April 14, 2016 in La Ronge, Saskatchewan. [ 4 ] Mr. Pelletier applied on behalf of the accused for an order excluding Crown witnesses not testifying. [ 5 ] The first Crown witness was the complainant, R.M.M.. She testified that on January 16, she had some interaction with Mr. D.R.. She indicated that Mr. D.R. wanted to know if she wanted to go to Prince Albert for the day and she indicated she did. Mr.

D.R. apparently had to drop a fellow off and he wanted to buy some liquor in Prince Albert. It should be noted that the complainant was 19 years old at the time and Mr. D.R. was approximately 45 years old. When in Prince Albert they went to someone’s house by the name of Lena on the west side of Prince Albert and then to Walmart. Once alcohol was purchased, the complainant and the accused headed north. That is when she started drinking. He took her on an isolated road indicating that it was to avoid police detection when they were drinking and driving.

At some point he stopped and rolled a marijuana cigarette and smoked it. The complainant indicated she did not have any at that time. They ended up at Nut Point campground at La Ronge and he said he wanted to drive his vehicle across the ice to where he lived at McKenzie Point. He told her that he loved her and always had loved her. She was uncomfortable with this. Once they got to the home where he and his wife and his daughter, J.R., lived, she helped him unload the vehicle. She testified she had been to that home before because J.R. is her cousin and is fairly close in age to her.

She said they went in and had a beer. He rolled up another joint and she did smoke some of that. She became highly intoxicated between the alcohol and the marijuana and ended up falling asleep. She woke up the next morning on a bed in the basement near the furnace. She had thought she was going to sleep on a cot however, wound up on a bed. When she woke up, Mr. D.R. was standing over her staring at her. She indicated she was wearing her yoga pants and had a tank top on the top of her body. She said watching him staring at her made her uncomfortable so she grabbed her belongings and left.

She testified that she had known Mr. D.R. for a long time. She said she had never intended to stay overnight when she arrived at that house. She had intended to go to her mom’s place a short walk away. She testified that she had never slept over night at the home of the accused before. She testified that she had heard a video was taken of her and she did not consent to that. [ 6 ] She indicated in cross-examination that she came across Mr. D.R. one other time at her sister’s place in Ile à la Crosse. She was at her sister’s place and suddenly Mr. D.R. showed up.

He went to sit beside her and she moved to another couch. He kept following her. She went to her room and when he came there she told Mr. D.R. to get out. Mr. D.R. once again said he loved her. Not much evidence came out of the Ile à la Crosse encounter that was relevant to this case. [ 7 ] The Crown’s second witness was J.R.. She is the daughter of the accused and the cousin of the complainant. J.R. said she was living in this house at that time but had been out all night. When she came home in the morning she went downstairs.

She saw the complainant laying there in bed and her father laying there behind the complainant. She tried to wake them up but they would not wake up. When she uncovered the two people, she said her father was in his underwear and that the complainant’s pants were half down. She said that R.M.M. was right out of it, snoring as she put it, and that her father was hugging R.M.M.. She was quite shocked to see R.M.M. spend the night at her house because she had never done that before. She was even more shocked to see her father in bed with R.M.M..

She testified that her mom found a video and gave it to her and that she turned it over to the police. She and her mother had watched it. The video was tendered in court as Exhibit P-1 for identification. The video was played and it is less than a minute. She was asked who was in the video. She very promptly answered that it was R.M.M. and her father. She identified a green coloured shirt, like a Roughrider shirt, that her father was wearing. Indeed, the male in the video appears to have a Roughrider shirt on. She said “I know that’s my dad by the body description and by his hands”. She said “That is R.M.M..

That was her hair colour and that was the pink shirt/sweater she was wearing that morning”. She indicated that everything she saw in the video accurately reflected what she saw when she went downstairs and saw Mr. D.R. and the complainant sleeping together. She recognized the blanket that was covering them. She recognized the location of the bed which was under a stairwell. She said “for sure that’s my dad. That’s his arms, that’s the veins on his hands”. [ 8 ] She testified that she was very angry with her father because at the time her father was still in a relationship with her mother.

She testified she never did see her father make the video but she was certain that the little snippets of recording that shows a person was her father. [ 9 ] The evidence of J.R. is fairly compelling. She clearly testified that the complainant had never slept at her house before. She also testified that in her view the person taking the video was very obviously her father. She identified what she had said was his shirt. She said she recognized his hands and his arms.

Probably most importantly, she recognized the complainant in the video as being her cousin by the colour of the shirt/sweater she was still wearing, the colour of her hair was also consistent, and further, the blanket on the bed was the blanket she saw that morning when she went downstairs and found the accused and the complainant in bed. I tried to think

of an analogous case where evidence, particularly photographic evidence, was discovered from an unknown source. It seems to me thatif photographs of say, one individual hitting another individual with a baseball bat, were discovered very clearly identifying the accusedand the complainant, it wouldn’t matter much where they came from provided the Court could be satisfied they are contemporaneouswith the assault.

That kind of evidence comes from other witnesses, witnesses who can say that they saw the fight and they saw what theaccused was wearing and they saw what the victim was wearing and they saw the brand of the baseball bat that was used. It is allcaptured in the photograph but the witnesses are able to separately identify that. [10] In this case, J.R. did not see any film being taken. Once again, she did see who she positively identified as her cousin, thecomplainant, in a bed with her father, under the stairs in the basement. She identified the complainant’s shirt/sweater and hair colour.

She identified what she believed to be her dad’s Saskatchewan Roughrider t-shirt. She claimed that she could identify his arms and hishands. There is one brief, blurry glimpse, of the face of whoever is taking the film and she claimed that that was her father.

I wasn’tentirely sure that it was clear enough to establish identity, but once again, J.R. was definite and she is his daughter. [11] It seems to me the issue of identity of the person who made the recording will either stand or fall on circumstantial evidence. [12] The rule in R v Hodges (1838), 1838 CanLII 1 (FOREP), 2 Lewin 227, 168 All ER 1136 was articulated by Baron Alderson aswhen the evidence before the Court is entirely or partially circumstantial, before a jury can convict an accused, the jury must be satisfied“not only that those circumstances were consistent with him having committed the act, but they must also be satisfied that the facts weresuch as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person”. [13] With circumstantial evidence, the rule in Hodges’ case is not applicable as to the issue of intent, (R v Mitchell (SCC), [1965], 1 CCC 155 (SCC)), and by intent I am referring to the mens rea.

Spence J. in R v Mitchell, supra, stated at p 167:“The circumstances which establish intent will seldom, if ever, be wholly consistent with only one conclusion as to his mental state. . .” The rule in Hodges’ case really boils down, once again, to whether the guilt of the accused has been proven by the Crown beyond areasonable doubt. [14] In R v Elmosri (1985) (ON CA), 23 CCC (3d) 503 (Ont CA), Dubin JA stated at p 506: With respect to the trial judge, that was a serious misdirection and in a sense the reverse of a proper instruction which should have beengiven to the jury where the Crown seeks to prove the identity of the accused as the person guilty of the offence solely on circumstantialevidence.

Although no exact formula need be followed, the minimum required for an instruction to the jury in such a case is as set forthby Mr.

Justice Ritchie in the case of R v Cooper, (1977) (SCC), 334 CCC (2d) 18 at p 33, 74 DLR (3d) 731, [1978] 1SCR 860 wherein the learned justice states: It is enough if it is made plain to the members of the jury that before basing a verdict of guilty on circumstantial evidence, that they mustbe satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. [15] Notwithstanding the eventual degree of intoxication of the complainant, R.M.M., I accept the testimony of the complainant onthe following points: 1.

The accused, D.R. was making romantic overtures towards her telling her that he loved her and always had; 2. That from the time the complainant arrived at the home of the accused, with the accused, the only people in the home were thecomplainant, the accused and the wife of the accused; 3. That she had never previously slept in a bed in the home of the accused or ever slept overnight;

4. That she woke up to see the accused standing over her and looking down on her; and 5. That she did not consent to a recording of her being made while she slept. [ 16 ] With regards to the testimony of the Crown’s second witness, J.R., notwithstanding the apparent acrimony, particularly from her to her father, D.R., I accept her testimony on the following: 1. That she is the daughter of the accused, D.R.; 2. That on January 17, 2014, she arrived at the home of the accused, which was also her home, in the morning; 3.

That she went into the basement and saw the accused and the complainant sleeping in a bed beneath the stairwell; 4. That she tried to wake the complainant and the accused up but she was unable to; 5. That she pulled back the blanket and saw the complainant’s pants had been pulled down by her knees; 6. That the accused was in the bed in his underwear; 7. That the accused was cuddled up close to the back of the complainant; 8. That the only people in the house of the accused at that time was the complainant, the accused, the accused’s wife, and J.R. herself; 9.

That J.R.’s mother discovered and gave to her a recording which was filed as Exhibit P-1 in these proceedings; and 10. That to her knowledge this was the only time the complainant, who was roughly the same age as J.R., had ever slept at the home of the accused. [ 17 ] Exhibit P-1 is a short video recording which is the recording of the complainant that is alleged to have been taken by the accused. The recording is not exceptionally clear but is taken of what appears to be of a woman who is in a bed and is sleeping.

At one stage of the recording it appears to record the face of the photographer but all I could conclude from that was the photographer was a male. The recording was not sufficiently clear to identify the male. However, J.R. was definite that the male in the video is the accused. She said that that was his Saskatchewan Roughrider shirt, which I could see quite clearly in the video, those were his arms, those were the veins in his hands, and that is his body description.

She was definite that it was her father in the video. [ 18 ] What I consider more significant is her further description that the recording accurately depicted exactly what she saw that morning when she went down into the basement. The bedspread depicted in the video was the same bedspread on the bed she saw that morning. She identified in the video the complainant, saying that that was her hair in the video and that that was the shirt the complainant was wearing that morning when the complainant was sleeping.

She recognized the location of the bed in the video as being the bed beneath the stairwell in the basement.

[ 19 ] I accept that she was in the unique position to be able to recognize subtle identification features of the accused in Exhibit P-1.

She is after all the daughter of the accused and has obviously known him all her life. [ 20 ] So, given that the evidence of the two Crown witnesses that the only people in the home the night before and the morning of January 17, 2014, were the accused, the complainant, the accused’s wife and J.R., and that the accused was clearly the only male in the residence, how could I reach any other conclusion that if the recording known as Exhibit P-1 was made on January 17, 2014 and that I find that it was a male who made the recording, who else could it even possibly be other than the accused. [ 21 ] Further, I find as a fact that this recording was made on or about January 17, 2014.

This is based on the testimony of the complainant and of J.R. that January 17, 2014 was the one and only time that the complainant slept in a bed in this home. [ 22 ] While the evidence of J.R. on the identification of the male in the recording is fairly strong, especially where she identifies the Saskatchewan Roughrider t-shirt that the male in the recording is wearing, and that can be seen in Exhibit P-1, it mostly comes down to the fact that the accused was the only male in the house on January 17, 2014, at all relevant times, and that January 17, 2014 is the only time the complainant slept in a bed at that home. [ 23 ] I therefore conclude that even if the rather stringent rule in Hodges case is strictly applied, that the accused is the person who made the recording.

To put it another way, I am satisfied and convinced beyond a reasonable doubt that the person who made the recording is the accused.

Section 162 of the Criminal Code [ 24 ] Section 162(1) of the Criminal Code states: Voyeurism 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. [ 25 ] There is no doubt that when the complainant is sleeping in a bed there is a reasonable expectation of privacy. I do not believe I have to go any further into that. [ 26 ] The next issue is whether the complainant was a person in a place in which a person can reasonably be expected to be nude, to expose her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity. I daresay that a person sleeping in a bed might intentionally or unintentionally expose their genitals or anal region or breasts simply by the nature of the fit of the sleeping wear. I find that s. 162(1)(

a) has been proven.

[ 27 ] If I am wrong, then I will skip by s. 167(1)(

b) as it simply does not apply here and move onto s. 162(1) (c). [ 28 ] Does the evidence establish that the observation or recording was made for a sexual purpose? I have already found as a fact that J.R. observed the complainant with her pants down to her knees and the accused cuddled up to her back only with his underwear on. That observation clearly in my view establishes a sexual component to the interaction between the accused and the complainant whether the complainant realized it or not.

Accepting as I do that the accused told the complainant earlier that night that he loved her and always had, and that the complainant woke up to see the accused standing above her and looking down on her, and the fact that the complainant’s pants were down to her knees and the accused was in his underwear while lying close to the complainant, the sexual overtones are unmistakable. [ 29 ] I therefore conclude that there is literally no other rational inference or reasonable conclusion I can reach other than this was for a sexual purpose.

In Exhibit P-1, the video does at one point scan from the complainant’s head down to her buttocks. [ 30 ] I have considered the case law filed by Crown and defence. In R v Taylor , 2015 ONCJ 449 there is no evidence of sexual contact on a very public beach where the accused was photographing females’ buttocks. The Court concluded that while the recording was likely for a sexual purpose, another possibility and reasonable inference was that of taking photos of womens’ buttocks was intended to be artistic.

There is no such component or evidence of artistic intent in this case. [ 31 ] Therefore I find the accused guilty on Information 90119869 as charged. ___________________ R.J. Lane, J