R v Winsor, 2024 ABCJ 0005

In the Alberta Court of Justice Citation: R v Winsor, 2024 ABCJ 0005 Date: 20240111 Docket: 230257438P1 Registry: Morinville Between: His Majesty the King Crown - and - Gloria Winsor Accused Oral Judgment of the Honourable Justice J.B. Champion These are my reasons for judgment in the matter of His Majesty the King and Gloria Winsor. [ 1 ] Ms.

Winsor is charged on a single-count Information as follows, that: (as read) Between the 20th day of October, 2022, and the 21st day of October, 2022, both dates inclusive, at or near Morinville, Alberta, did knowingly publish, distribute, transmit, sell, make available or advertise 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 their conduct, contrary to

section 162.1(1) of the Criminal Code of Canada . [ 2 ] The case against Ms. Winsor consisted of three witnesses who testified: Erin Suer, who is the complainant in this matter; Trevor Winsor, Ms. Winsor’s estranged husband; and a family friend, Jayson Brown. Gloria Winsor and Trevor Winsor had been involved in a relationship for some number of years. It is quite apparent that there had been a disintegration of their relationship, and the evidence before me is that as of 2022, they were living separate and apart in the same home. [ 3 ] Ms. Suer was the first witness.

She testified that on October 20th, 2022, she and Trevor Winsor had been intimate in his home, having had sexual intercourse. Following that, she was getting dressed. The accused went into the house, came down the hallway into the bedroom, began yelling and screaming, and took photographs of Ms. Suer as she held her clothes to her body. Ms. Suer used the term ‘semi nude’ to describe how she was when the photographs were taken. [ 4 ] She testified that the accused left. Ms. Suer continued getting dressed, gathering all of her belongings and her clothing, and as she went to leave, she could not find her shoes.

[ 5 ] The next day, she received a text from the accused, in essence saying, “You forgot your shoes. Hope your feet were cold.” She received the text on Facebook with photos, entered as Exhibit 1 in these proceedings. Exhibit 1 consists of photocopies or screens of texts sent on Facebook depicting four photographs of Ms. Suer as she described. [ 6 ] Ms. Suer’s evidence was that she was still completely nude but was picking up her clothes, although she did use the term that she was “semi nude”. She described the scene when Ms. Winsor entered as chaotic and that she looked angry. [ 7 ] Ms. Suer testified that Ms.

Winsor held the phone up as she was yelling and screaming and repeatedly took pictures of her. The accused was standing at the foot of the bed, and Ms. Suer was toward the head of the bed. She said she was trying to hide herself and used her clothes to hide her breasts and that the accused kept taking her photograph.

She again said that she was semi nude and then said that she was naked but that her breasts and her vagina were covered, although there were side views of her “butt, breasts, back, and stomach.” [ 8 ] The following day, October 21st, 2022, at approximately 4:00 - 4:30 PM, she received a message on Facebook from the accused with the photographs. She testified it came from the accused’s Facebook account and was a direct message to her and that the Facebook page had the accused’s name at the top of it. [ 9 ] In reviewing Exhibit 1, Ms.

Suer described that she was accurately depicted in the photographs, saying that she was naked, but picking up her clothes when the pictures were taken, and she was using the clothes to cover herself. [ 10 ] The cross-examination of Ms. Suer established that there had been some previous interaction between the accused and Ms. Suer, and that the relationship between Ms. Suer and Mr. Winsor had been going on for some period of time. On the night in question, although the Winsor children were staying in the house, they were asleep in their rooms with the bedroom doors closed.

The accused was not expected to be home until after midnight. Ms. Suer testified that she went to the police to report the incident because she was of the view that the actions of the accused were illegal. [ 11 ] The next witness called was Trevor Winsor, reiterating the evidence that he had been involved in a relationship with Ms. Suer for a period of time. On the night in question, they had had sexual intercourse, and at the conclusion, as Ms. Suer was gathering her materials together, the accused entered the bedroom and began to take photographs. All these events occurred at Mr.

Winsor’s residence in Morinville, Alberta. [ 12 ] When asked to describe what was depicted in the photographs, Mr. Winsor used the term “semi nude” in depicting the pictures of Ms. Suer, testifying that she was picking up her clothes off of the floor. The photographs had been sent to Mr. Winsor as well from the accused’s cell phone. In reviewing the photographs, Mr. Winsor agreed that the photographs in Exhibit 1 were an accurate depiction of how Ms.

Suer appeared at the time the photographs were taken. [ 13 ] The police were contacted on February 9th, 2023, and the photographs were sent on to the RCMP. [ 14 ] The next witness called on behalf of the Crown was Jayson Brown, who is a family friend, mainly of Mr. Winsor, and had been for approximately 17 years. He testified that on October 21st, 2022, at approximately 7:36 AM, while he was at his job as a heavy- duty mechanic in Acheson, Alberta, he received text messages from the accused, the first one containing “a naked picture” of Ms. Suer, inviting Mr. Brown to have a conversation with Mr. Winsor. Mr.

Brown said he immediately deleted the photograph, and the conversation continued. [ 15 ] Mr. Brown told Mr. Winsor and Ms. Suer about the photographs, but before he did that, he deleted them off of his phone, and he also told his wife that he had gotten the photograph and the text and had deleted the photograph. [ 16 ] In describing the photograph, he said that Ms. Suer was naked, in Mr. Winsor’s bedroom and that she was standing “stark naked” but holding her clothes to cover herself up. In reviewing the photographs that were Exhibit 1, Mr.

Brown confirmed that they were, to use his words, “the exact same image” that was sent to him. It was brought to his attention in cross- examination there were four photographs, and he was unsure exactly which of the photographs he had been sent, but said they all depicted roughly what it was that he recalled having seen. [ 17 ] No evidence was called on behalf of the defence. [ 18 ] The issue was framed by the Crown in opening argument as to whether or not the photographs in question meet the definition under

section 162.1 (

a) of the Criminal Code .

Section 162.1(1) states: (as read) 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. [ 19 ] Subsection (2) of

section 162.1 defines intimate images as follows: (as read) 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. [ 20 ] There was some discussion about the wording of subsection (2), but it is my view, and counsel agreed that subsections (a), (b), and (

c) are disjunctive. Once an offence is made out under subsection (a), it is not necessary to meet the requirements of (

b) and (c). [ 21 ] Also, in relation to subsection (a), it is my view, and counsel also agreed that it is not necessary that all of the conditions in

subsection (

a) be met since they are disjunctive in that an intimate image may be either of a person who is nude or is exposing his or hergenital organs or anal region or her breasts or is engaged in explicit sexual activity. They are not cumulatively required. [22] The issue, therefore, is whether the photographs in Exhibit 1 constitute photographs “in which the person is nude.” [23] It is helpful to review common

definitions of the term nude and then to apply them to the legal

definitions. In the CambridgeDictionary, nude is defined as “not wearing any clothes.” In the Merriam-Webster Dictionary, nude is described as “devoid of a naturalor conventional covering.” In the Brittanica Dictionary, nude is described as “having no clothes on or involving people who have noclothes on.” In the Oxford Learner’s Dictionary, nude is described as “not wearing any clothes.” [24] The issue, therefore, is whether or not Ms. Suer was nude, as required by the law, in the photographs. There are two decisionsthat I have reviewed that provide some direction in this regard.

The first is the case of the Supreme Court of Canada in R. v. Verrette, (SCC), 1978 2 SCR 838. In that case, the Court was considering an appeal from the Quebec courts in relation to a maledancer and what nude meant in the context of the legislation at that time. Some of the comments of the Court need to be contextualized inlight of the extant Criminal Code sections, but it is quite clear that the Supreme Court has given direction in relation to what nude means.Reading first of all from the headnote of the case, it states as follows: (as read) In the old

section 205A of the Criminal Code, the expression used was “shall be deemed to be nude”. This was clearly a deemingprovision which assimilated scantiness of dress to complete nudity provided that scantiness of dress was such as to offend against publicdecency or order. A deeming provision is a statutory fiction which plays a function of enlargement. Thus in the old

section 205A, farfrom restricting the ordinary meaning of “nude”, the provision enlarged the meaning by bringing scantiness of dress within its scope. Thenew version of the Criminal Code simplified and shortened the

section and “anyone shall be deemed to be nude” was replaced by “aperson is nude”. This change is one of style which does not alter the deeming nature of the provision. Even though Parliament uses “is”,this is still a statutory function and nude in section 170(1)(

a) retains its normal meaning of total bareness, which however is notionallyextended to certain ways of being clothed by section 170(2). The word nude simply means completely bare, without reference to publicdecency or order. [25] Going into the body of the judgment, beginning at page 843, the Court said: (as read) The only question argued before this Court and the only one for determination is whether “nude” in section 170(1)(

a) of the CriminalCode refers to the sole fact of complete nudity or whether it should be read in the light of section 170(2) so that it is incumbent upon theprosecution to establish that the nudity offended against public decency or order. In other words, should section 170(2) be construed asrestricting the ordinary meaning of nudity for the purposes of the

section or as extending the scope of section 170(1) so as to includewithin nudity certain ways of being clothed? The question has recently given rise to conflicting judicial opinions apart from those expressed below in the instant case. [26] The Supreme Court clearly defined what the issue was.

The Court said at page 845: (as read) The problem we have to solve did not arise under the old section: it forbade nudity, in the normal dictionary sense of complete nudity. [27] The Court then continued at the bottom of that page, continuing over to 846: (as read) Thus, a scantily dressed person is not really nude; but if under certain conditions that person be deemed to be nude in a provisionprohibiting nudity, the word nude keeps its ordinary meaning which at the same time is extended to something which is not nudity. [28] If one reads through all the

interpretations of the Supreme Court, it stated that nude means completely nude. [29] At page 847, the Court said: (as read) No legal fiction is involved there as in saying that a person is nude who is clad in a certain way. Also and as was noted above, such anexhaustive definition of nudity would entail an incongruous result in excluding complete nudity from the reach of the section. [30] To understand the context of that case, one has to review the strange wording of Criminal Code statutes back in the 1970s asthey related to exotic entertainment. [31] Verrette is cited in Tremeear’s Annotated Criminal Code on

section 174: (as read) Where there is complete nudity without lawful excuse in a public place, the offence is committed whether or not the nudity offendsagainst public decency or order. Proof that nudity offended against public decency or order is not required from the prosecution. Section174(2) does not apply to a situation of complete nudity. [32] There is one other case that refers to

section 162.1, a decision out of the Ontario Court of Justice in R. v. Verner, 2017 ONCJ415. The facts in that case involve a situation of revenge pornography. Starting at paragraph 4, the trial judge said: (as read) 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 withM.S., the complainant, 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 . [ 33 ] The justice in that situation reviewed

section 162.1 and broke down the wording of it much in the way that I have described in this case. [ 34 ] The Court then reviewed the image that had been distributed, and at paragraph 27 stated: (as read) In terms of what is seen on the image, we can see M.S. leaning over the bed, on her stomach. She is nude, from everything I can tell in the image. [ 35 ] The issue then became whether or not the image depicted sufficient evidence as to meet 162.1.

It was not disputed that the complainant and the other person engaged were involved in sexual intercourse at the time the photograph was taken, and I take the justice at his word when he said he reviewed the image.

He could see that the woman was nude. [ 36 ] At paragraph 47, the Court stated: (as read) 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. [ 37 ] I find that the Verner case gives some insight, but it is also distinguishable because there is no question but that in that case the complainant was completely nude. [ 38 ] In submissions in this case this morning, I raised with counsel the situation involving someone who steps out of the shower and has a towel wrapped around them, the issue being whether or not that person is nude.

Would it make any difference if the person, instead of wrapping herself in the towel, was simply holding it up to prevent their nudity from being discovered? I think most people would agree that the application of common sense is such that if one is holding a towel around oneself, one is not nude. Similarly, if one is holding up a towel to prevent people from seeing her, that person is not nude. [ 39 ] It is noteworthy that Parliament did not use the terms “semi-nude” or “partially clothed”. [ 40 ] The conduct of the defendant in this case was deplorable and is devoid of common decency and civility.

Her purpose was to embarrass, demean, and humiliate Ms. Suer. It was intended to subject Ms. Suer to extreme disparagement by the distribution of the photographs. The question, however, is whether her conduct was also criminal in nature. [ 41 ] Parliament has enacted the Criminal Code provisions to deter and punish the dissemination of intimate images without consent.

This is also called revenge pornography. [ 42 ] In the Verner case, reference is made to the Hansard debates in Parliament before these provisions were passed, and it is quite clear that Parliament was very determined in defining those circumstances that would trigger criminal consequences. [ 43 ]

Section 162.1(2)(

a) refers to an intimate image of being one in which the person is nude. Exhibit 1 depicts Ms. Suer in a way that shows some parts of her body, but she is obstructing or shielding the view of her completely nude body by holding items of clothing in front of her. This was done to prevent the accused from taking photographs of Ms. Suer’s completely nude body. In this, Ms.

Suer succeeded. [ 44 ] If someone is unclothed, but is shielded from complete nudity by a towel, a coat, a tree, or articles of clothing held up to protect them from being seen completely, that person is not nude in the context of the Criminal Code . A photograph of someone in their underwear would not fall under the provisions of

section 162.1 regardless of how much or little the underwear concealed or revealed. As a result, the photographs of Exhibit 1 do not portray the complainant as nude, and accordingly, the provisions of

section 162.1(2)(

a) are not triggered. [ 45 ] Ms. Winsor, would you please stand. I find that the Crown has not established beyond a reasonable doubt that the offence has been made out, and therefore you are entitled to an acquittal. I find you not guilty of the charge before me. Delivered Orally on the 29 th day of November, 2023. Dated at the Town of Morinville, Alberta this 11 th day of January, 2024.

J.B. Champion A Justice of the Alberta Court of Justice Appearances: B. Wiebe for the Crown S. Smith for the Accused