R. v. R.(T.), 2011 ONCJ 905

Citation: R. v. R.(T.) , 2011 ONCJ 905 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN - v – T. R. * * * * * * * * * R U L I N G O N M O T I O N F O R N O N S U I T * * * * * * * * * BEFORE THE HONOURABLE JUSTICE P. TETLEY on SEPTEMBER 19, 2011 at NEWMARKET, Ontario * * * * * * * * * APPEARANCES

S. WISENER Counsel for the Crown D. REEVE Counsel for the T.R. * * * * * * * * * SEPTEMBER 19, 2011 R U L I N G O N M O T I O N TETLEY J. (Orally) [ 1 ] This is a matter where Mr. Reeve appears as counsel for T.R., Ms. Hutchinson is counsel for the Crown. The trial in this matter commenced on June 2, 2011, and the Crown’s case is complete. At the conclusion of the Crown’s case, Mr. Reeve, on behalf of his client, brought a motion for non suit, and this is the ruling on that motion. [ 2 ] The applicant, T. R., seeks relief by way of an application for non suit, based on the failure of the Crown to establish a prima facie case in relation to a charge of voyeurism, contrary to s. 162(1) (

a) of The Criminal Code . [ 3 ] The offence of voyeurism is committed by the surreptitious observation by electronic or mechanical means, or otherwise, or the visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy.

The offence can be committed in a number of different or alternative ways, including by observing or electronically visually recording a person who is in a place, like a bedroom or a bathroom, 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. The ways in which the offence can be committed are set out for the purposes of this motion in s. 162(1) (

a) of The Criminal Code . [ 4 ] In this prosecution the information was particularized to indicate the act of voyeurism alleged. In this circumstance the act alleged relates to the visual recording of the complainant while she was “engaged in explicit sexual activity”, mirroring the actual wording of one of the components of the aforementioned section. THE FACTS [ 5 ] The complainant was 18 years of age and in grade 12 when she became intimate with the applicant, who was at that time the complainant’s best friend’s cousin.

The relationship concluded at the instigation of the applicant, I gather, in September 2010. Shortly thereafter several digital images of the complainant were posted on an illegitimate Facebook account that had been opened without the authorization or knowledge of the complainant. These images featured a number of pictures of the complainant. She was depicted naked, laying or kneeling on a bed, in several sexually provocative poses. [ 6 ] The complainant testified that she was unaware that her image had been recorded while she was in a state of undress in a room she identified to be her boyfriend’s bedroom.

Based on the length of her hair in the posted pictures, she believed the images dated from the

summer of 2010. [7] The complainant identified the applicant as being partially depicted in several of the photographs where only a portion of a body,other than that of the complainant, can be ascertained. [8] At the outset of the Crown’s case a

summary of the anticipated trial testimony of K. B. was read into the record and acknowledgedwithout being challenged by the applicant. This individual, who was described as an acquaintance of the complainant and a friend of theapplicant, testified that she received images of the complainant on her Facebook account on October 5, 2010, or thereabouts. Ms. B.believes some of the images depicted the applicant and complainant in a state of undress and engaged in sexual activity. On receipt ofthese images Ms. B. immediately contacted the complainant to report what she had observed.

The complainant was recalled as havingbeen upset by the receipt of this information. [9] The test for non suit is met, if on consideration of the entirety of the trial record, it is concluded that there is no case for the applicantto meet. The motion shall be dismissed in circumstances where there is admissible evidence which could, if it were to be believed, resultin a conviction. Consideration must be given to whether the Crown has presented evidence on each of the constituent elements of theoffence alleged.

In cases involving consideration of circumstantial evidence, the court must weigh the evidence in the sense of assessingwhether it is reasonably capable of supporting the inferences the Crown requests be drawn. In other words, could the evidence, ifbelieved, reasonably support an inference of guilt. If the evidence could result in a conviction the non suit fails, otherwise the chargemust be dismissed. (See: United States of America and Sheppard, (SCC), [1977] 2 S.C.R. 1067, and R. v. Arcuri 2001SCC 54 , [2001] 2 S.C.R. 828 per McLaughlin C.J.O. at paragraph 23.) [10] On behalf of Mr. R., Mr.

Reeve notes the Crown’s particularization of the voyeurism offence alleged as involving the surreptitiousrecording of “explicit sexual activity”. [11] The applicant asserts there is no depiction of sexual activity, “explicit” or otherwise, in the images in issue, and consequently, as theCrown is bound by the particularization of the offence charged, the non suit motion ought be granted. (See: s. 587 Criminal Code, R.S.C.1985.c.C-46; R. v. Saunders, (SCC), [1990] 1 S.C.R. 1020, 56 C.C.C. (3d) 220, 77 C.R. (3d) 397.) [12] As far as the particularization issue is concerned, I accept this submission.

Although the voyeurism offence in issue may becommitted in various ways, including the surreptitious recording of an individual in circumstances where genital organs or breasts aredepicted, where, as here, the Crown has alleged a particular prohibited act (the unauthorized recording of explicit sexual activity), theestablished facts must be concluded to be sufficient to support a finding of guilt on the charge as particularized, otherwise the non suitapplication must be granted.

THE DEFENCE VIEW [13] Consideration now turns to the defence submission that there is an absence of evidence of explicit sexual activity in these images. [14] The applicant submits there is no evidence of explicit sexual activity in any of the images presented in evidence by the Crown. Reference is made to a number of cases where the phrase “explicit sexual activity” has been previously considered by the courts. Mostof these authorities relate to consideration of that term within the context of obscenity related offences. A number of cases in that regard were cited, R. v.

Smith, , 76 O.R. (3d) 435, 198 C.C.C. (3d) 499, 31 C.R. (6th) 14, 199 O.A.C. 338 (leave to appealto the S.C.C. refused 198 C.C.C. (3d) 499n, a decision of the O.C.A.; R. v. Butler, (1992), (SCC), 70 C.C.C. (3d) 129,a case involving consideration of an obscenity charge relating to adult heterosexual sexual activity, a Supreme Court of Canada case; andR. v. Sharpe, 2001 SCC 2 , 2001 S.C.C. 2 , [2001] 1 S.C.R. 45, a Supreme Court of Canada case involvingconsideration of a child pornography situation.

These cases were all referenced by the applicant. [15] The applicant places particular reliance on the definition of “explicit sexual activity”, as discussed at some length in the OntarioCourt of Appeal judgment, R. v. Smith. This case is submitted as offering definitional guidance in interpreting the term within thecontext of the charge in issue here. [16] The Applicant’s counsel references the following considerations, which are submitted as being of significance in the determination

of the definition of this term within the context of s. 162(1) (a): i. By implication, as the term is not specifically defined in The Criminal Code for the purposes of s. 162(1(a)(the voyeurism charge faced by Mr. R.) “explicit sexual activity” must involve, in the submission made on behalf of the applicant, sexual “acts that fall at the extreme end of the sexual spectrum, such as acts involving nudity or intimate sexual activity represented in a graphic and unambiguous fashion”, with reference being made to paragraph 4 of the Smith judgment; ii.

So called “sexualized nudity” is submitted as not being sufficient on its own to constitute a depiction of “explicit” sexual activity; iii. Within the context of s. 163 obscenity offence, note is made of Chief Justice McLachlin’s comments in R. v. Sharpe , a case as I’ve indicated, that involves consideration of child pornography. In that case, the Chief Justice concluded the word “explicit”, within the context of sexual acts involving children, means a description or representation of nudity or intimate sexual activity depicting “sexual intercourse or other non-trivial sexual acts”, (paragraph 45). iv.

By analogy, the applicant asserts “something more than mere adult nudity”, or even “sexualized nudity” is required to constitute “explicit sexual activity” for the purpose of

establishing the offence of voyeurism. v. As no sexual acts are asserted as being depicted by the images of the complainant here, the applicant submits a reasonable person viewing the images could not conclude they were explicitly sexual in nature. Reference is made to paragraphs 46 and 48 of the Ontario Court of Appeal decision in R. v. Smith . This submission is predicated on the defence contention that the images in issue, at least those involving the complainant, simply depict various perspectives of the complainant’s un-clothed body, absent any form of sexual activity. THE CROWN’S VIEW [ 17 ] Ms.

Hutchinson responds by noting the absence of a statutorily enacted definition of “explicit sexual activity” in The Criminal Code as it specifically relates to the offence of voyeurism as defined in s. 162(1) (b). Reference is made to the apparent harm that

section might reasonably be presumed to have been enacted to address, including the prohibition of any form of surreptitious observation of individuals when they are in a place where they might reasonably expect that their activities will be private. [ 18 ] As the offence can be made out by the unauthorized recording of a naked body or even a part of a body, including the breasts, anal region, or genitalia, the Crown submits that the constituent elements of “explicit sexual activity” in this

section must be given an expansive definition. [ 19 ] Relying on the Supreme Court of Canada discussion of the term in R. v. Sharpe , and particularly referencing paragraph 3 of that decision, the Crown contends the term “explicit sexual activity” may appropriately be considered to distinguish between relative innocuous activities of a sexual nature such as kissing, handholding, or hugging, and those of a more invasive or “non- trivial” variety such as the activity the Crown alleges occurred here. [ 20 ] As Justice L’Heureux-Dube notes in R. v.

Sharpe (paragraphs 44 through 49), in regard to the term “explicit sexual activity” within the context of s. 163.1, the word “explicit” suggests at the very least, that the sexual aspect must be clear. By analogy to the definition of “explicit sexual activity” in the context of that child pornography case, the Crown submits acts involving nudity or intimate sexual activity, depicted in a graphic, unmistakably sexual and unambiguous fashion, will fall within the prohibition the s. 162(1) (

a) voyeurism offence was enacted to sanction. ANALYSIS AND CONCLUSION [ 21 ] 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. [ 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.

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

The depiction of the naked complainant in the applicant’s bedroom while on the applicant’s bed, in circumstances where the images were secured during the course of an intimate relationship between the applicant and complainant, are factors that might reasonably be relied upon to conclude sexual activity either has occurred, is occurring, or is about to occur. [ 26 ] In my view, these factually based, reasonably available inferences, are sufficient to create an adequate factual and legal basis for the non suit application to be dismissed. [ 27 ] The depiction of several body parts, attributed to the applicant by the complainant, in close proximity to the naked body of the complainant in those circumstances, might well be concluded by a properly instructed jury to constitute the depiction of an “explicit sexual act”.

The age of the individuals depicted, the fact the images depict the applicant’s bedroom and feature a naked complainant in sexually suggestive poses on the applicant’s bed with the applicant being identified as being in extremely close proximity to the naked complainant, are all factors that support this conclusion. [ 28 ] I conclude a reasonable person viewing these images, within the context and the circumstances referenced in the evidence of the complainant, and the other witness whose evidence was admitted, would permit a reasonable fact based inference to be drawn that at least several images depict “explicit sexual activity”. [ 29 ] Consideration of the parts of the bodies depicted, the nature of the depiction; the circumstances and context wherein the images were captured; consideration of all the surrounding circumstances, including such factors, as noted, as the age of the complainant and applicant, the nature of their relationship and the testamentary reference to the applicant’s reported intention to release naked images of the complainant for wider public viewing; are all factors that could form the basis for a reasonable conclusion that “explicit sexual activity” was depicted by one or more of the images, and not simply so-called “sexualized nudity”. [ 30 ] For these reasons the non suit application shall therefore be dismissed. . . . .

FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act I, Pamela A. J. Thompson, certify that this document is a true and accurate transcript of my recording of R. v. T. R. in the Ontario Court of Justice held at 50 Eagle Street West, Newmarket, Ontario taken on September 19, 2011. March 21, 2014 Pamela A. Thompson (Date) Pamela A.J. Thompson, C.V.C.R. Certified Court Reporter NOTE: Photostat copies of this transcript are not certified and have not been paid for unless they bear an original signature in blue and accordingly are in direct violation of Ontario Regulation 587/91 , Courts of Justice Act , January 1, 1990.