R. v. W.(S.), 2011 ONCJ 656

Citation: R. v. W.(S.) , 2011 ONCJ 656 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. S.W. R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE M. S. BLOCK on October 3, 2011, at OSHAWA, Ontario INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 486(1) AND 517(1) OF THE CRIMINAL CODE

APPEARANCES : G. Hendry Counsel for the Crown I. P. Greenway Counsel for S.W. MONDAY, OCTOBER 3, 2011 INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 486(1) AND 517(1) OF THE CRIMINAL CODE R E A S O N S F O R J U D G M E N T BLOCK, J. (Orally): S.W. is charged that between February 7th and August 5th, 2009, he committed an offence under Section 162(1) (

a) of the Criminal Code . The offence is particularized to allege that he did surreptitiously observe, by watching with a hidden video camera, a person who was in circumstances that gave rise to the reasonable expectation of privacy when that person could reasonably be expected to be nude and to be exposing his or her genital or anal organs or anal region or exposing her breasts or be engaged in explicit sexual activity, namely; E. S. at a bedroom at (address) in Oshawa. E. S. was the stepdaughter of the accused. It is not contested that the two lived at (address) Oshawa with the mother and brother of Ms.

S. during the time period described in the information. I will deal with the evidence of Reiner Ehlers first and out of chronological sequence as it explains much of the narrative to follow. Sometime in July of 2009 Mr. Ehlers, a contractor, was renovating a house located at (address) in Oshawa . Mr. Ehlers had installed a back-up camera on his pick-up truck. This device consisted of a camera placed on the rear of the vehicle which transmitted a rearview image on a wireless frequency to a small television screen located on the dash. He was used to picking up images from other places.

Images from store security cameras and the like often appeared on his screen as he passed their locations. On his daily drive down (location) for about three weeks in July and August 2009, Mr. Ehlers picked up the image of what appeared to be a teenaged girl’s bedroom completed with stuffed toys and a poster with a vampire or satanic image on it. On several occasions a teenaged girl was present. On one occasion she came into his view wearing a towel, dropped the towel revealing herself in the nude and then got dressed. She appeared to unaware of the camera. Mr.

Ehlers saw the girl three to five times, but saw the bedroom in question perhaps fifteen times. Mr. Ehlers remarked on this curiousity to his client. She believed that she knew the place and the girl Mr. Ehlers described. They went to the police. The police approached and interviewed E. S. and her mother, J., who lived at (address), Oshawa . They determined that E. was the girl in the image displayed on Mr. Ehlers’ back-up camera monitor. Mr. Ehlers had accurately described what turned out to be the bedroom of E. S. That conclusion was also his uncontradicted evidence at the trial before me. E.

S. testified that on August the 5th, 2009, she attended a Durham Regional Police station with her mother for the interview described above. She was advised of the reason for the police concern. Until that time she was unaware that she was being surreptitiously observed. After the interview she returned home. The police also attended and conducted a search of her bedroom for items that might have captured her image. During the search the defendant arrived. He angrily demanded that the police leave. After they complied, S.W. asked E. whether they had found anything in her room.

She told the court that he “really focused” on whether the police had touched his computer.

E. told the court that the same night S.W. behaved unusually. “He was being very, like, weird, not himself.” “He kinda all night just kinda went back and forth in and out of the house.” To Miss S.’s knowledge, no one told the defendant the reason for the police interest. Overnight E. moved from her bedroom to the couch in the living room to sleep. The next day E. woke between 5:00 and 6:00 a.m. because she heard S.W. moving about. He noticed she was awake and told her that he was removing the clock radio from her bedroom and another one elsewhere in the house as they were “crap” and would get her a new one.

Up until that point Miss S. was unaware of any difficulty with the clocks. He left her a note, filed as Exhibit One in this proceeding, to that effect and to say that he was picking up an iPod as well. E. told the court that the clock radios had first appeared in the house about a year prior. S.W. told her that he got the clocks for $10 at an electronic store and they worked well. She already had a clock radio. It worked. There had been no discussion about her wanting or needing another one.

Not long after S.W. brought the clock radios, he moved the one in her bedroom to face the bed and much of the other area of her bedroom. She identified the clock radio in a contemporaneous photograph of her bedroom, and that photograph was made an exhibit. An identical clock was placed in the master en suite bathroom at the same time. E. told the court that she would shower in that bathroom instead of the one closer to her room as her mother had been complaining about having to clean her shower as well as the one in the master en suite bathroom.

She said that this had been a particular concern with the accused and had been an issue with her mother in the past. The clock radio in the master bathroom was frequently unplugged. She believed that this occurred when the electrical outlet that was used for it was needed for her brother’s electric razor. Often that clock radio, and this is the one placed in that bathroom by S.W. in July 2008, flashed “unset” as if whoever plugged it in was indifferent to the time being displayed. E. described a series of incidents that might be taken as evidence of illicit interest by the defendant toward her.

The witness described being made uncomfortable by compliments paid to her by the defendant in the presence of her mother. She said that she was kissed by S.W. on the mouth. She says that on one occasion she was touched or grabbed on the breasts by him during a tickling session. He said “sorry” after this happened. On one or two occasions he lay down beside her on the bed. She was unsure about when this happened, how many times or whether he touched her at all in the process.

Prior to receiving this evidence, I told counsel that I was mindful of the dangers of propensity evidence and might well give little or no weight to evidence that might be suggestive of innocent horseplay. Ultimately, Ms. Pargana asked me not to consider this evidence when I determined the merits of the case. I agree. I view the incidents described as inherently vulnerable to innocent misinterpretation including the incident where S.W. touched the young lady’s breast during a tickling session and then quickly apologized.

E. was shown a photograph of clock radios which had been previously shown to her by the police. One of these photographs, Exhibit Three at trial, appeared identical to the clock radios that had been placed in her bedroom and the master en suite bathroom by the S.W.. Exhibit Three was subsequently indentified by Detective Bussanich as being a photograph of a clock radio containing a hidden video camera and taken from the internet. Under cross-examination, E. agreed that the defendant sometimes needed help with the Rogers box and asked for her help in dealing with electronic goods.

She disagreed that the master bathroom clock radio was unplugged more often than not. She said it was on every time she showered. She maintained that the defendant and not her mother instructed her to shower in the master bathroom. E. agreed with Mr. Greenway that S.W. and her brother A. did not get along, though she appeared to think the events that led to the discord were fairly trivial. She was not aware of much family discord between her uncle, M. P., and Doug, that is S.W., over an incident where A. and his girlfriend had damaged an ATV. She did recall Mr.

P., a Toronto Police Service officer, telling her to speak with him if she ever felt threatened by the defendant. This happened shortly before the charges before the court came to light. E. said that she and her mother were away from the home during late July 2009. This witness struck me as straightforward in-chief and fair in her responses and admissions to Mr. Greenway during cross-examination. J. S. testified. S.W. said he got the clock radios in a Toronto discount store for $10 a piece.

He had said that she would be able to find out the time from the clock radio without asking others when she was having her morning shower in the master bathroom. She said she didn’t need the clock radio and told S.W. so. She said it got in the way of the hair dryer. She removed it from the bathroom when he was away on business. It was plugged in 80 percent of the time, and when it was plugged in and on the bathroom vanity where it always

sat it usually had the time unset. Its constant blinking unnerved Ms. S. When she asked to go to the same discount electronic store and get other “good deals” that he had described, S.W. put her off. Ms. S. said that it was her preference that the family shower in the master bathroom to lessen her domestic workload. She said that she did not position the other clock radio in E.’s bedroom. Ms. S. corroborated her daughter’s account about the defendant’s anger in the presence of the police when he discovered them in the family home on August 5, 2009.

She also did not tell him the real reason why the police were there. No one had complained about the clock radios’ performance and the defendant had never mentioned getting rid of them prior to August 5, 2009, according to Ms. S. There had been a great deal of discord in the extended family about financial responsibility for an ATV accident involving Adam’s girlfriend. When the police contacted her on August 5, 2009, she assumed that they were calling about this matter. After the interview with the police, she put the defendant off by telling him in effect “there is nothing to worry about”. Ms.

S. said that there was no real animosity between A. and S.W.. She told the court that S.W. was not adept at handling electronics, but managed nonetheless. She confirmed that she and E. were at a cottage and out of town from July 24th to the 31st, 2009. I regard this witness’ evidence as reliable and credible. She was fair and responsive on cross-examination. A. S. testified. He corroborated the evidence of his sister and mother regarding the clock radios. S.W. told him the clock radio was in the master bathroom “because your mother likes to hear the radio”.

The defendant never complained about the clock radios until their disappearance. A. recalled seeing an antennae on S.W.’s desk. In his view, it was not a modem. He had arguments with S.W. regarding a noisy party and about his hair. He testified that the ATV accident wasn’t much of an issue in the family. A. seemed to minimize the discord within the extended family over this issue. He thought S.W. was having affairs with other women. He seemed to dislike the defendant.

I make the observation that A.’s suspicion that the defendant was using an antennae is not useful to the court in the absence of some evidence that the transmission of video images from the clock radios and their reception elsewhere required such a device. M. P. testified. He is the brother of J. S. He confirmed that there were hard feelings about the ATV accident concerning who was responsible for the damage.

Detective Bussanich gave evidence that he searched the internet and found the photograph of the clock radio with the hidden camera identified by E. as identical to the clock radio in her bedroom and the master bathroom. He testified he seized four computers in the home and found nothing connected with the offence alleged. THE EVIDENCE OF THE DEFENDANT : In an earlier ruling, I admitted a statement made to the police on or about August 5, 2009. In this statement to the police, S.W. stated that he had bought the clock radios in June 2008 to discourage or investigate theft from his marketing displays.

He bought two in Toronto for

$550. At trial, S.W. testified that the reason for the purchase was to tape trade shows for research and marketing purposes. He said he was unable to get the devices to work and threw out various accessories such as receivers, cords and adapters. The store response to his inquiries discouraged him from seeking a refund. He brought the clock radios home to see if use could be made of them. He claimed indifference over their location. The defendant said that he did not position the clock radio in E.’s room. On August 4, 2009, S.W. became aware that the police wanted to speak with J. and E.

He told the court that he assumed that this was a result of the ATV controversy. When J. was not forthcoming as to the reason for the police interview and subsequent search, he assumed that she was protecting A. Sometime earlier, in S.W.’s evidence, A. had thrown a huge party and trashed the house. In his recollection, he had thought the police might be there to search for stolen property or drugs. Alternatively, thought S.W. at the time, the police attended to search for weapons or evidence connected with a break-in to a nearby police officer’s home.

S.W. then told the court that the next morning he grabbed the clock radios and several unused CD players and left for Mississauga. His destination was the shop of his friend Sam. His intention was to have his bumper fixed and to see if he could find an electronic salesman and repairman he once knew to whom he could sell the clock radios. He then intended to buy E. a laptop and perhaps an iPod. Unable to find Sam or the electronics sales and repair man, he purged his car of numerous items including the clock radios by throwing them in the garbage and returned to Oshawa .

The defendant told the court that he never told the family about the hidden cameras in the clock radios because he considered that feature inoperable. He told Ms. Pargana in cross-examination that in June 2009 he wrote an entry in his Day-Minder to return the clock radios. In my view, there is no evidence to confirm that the entry ostensibly reminding S.W. to return the clock radios was in fact written prior to August 2009. I reject S.W.’s evidence. He brought to his home clock radios which concealed hidden cameras and advised no one of the original purpose of these items.

He appears to have installed them at home within one month of purchase. He determined he could not make them work, but did not, contrary to what he assured the court was his usual practice, consult others in the home to assist him. S.W. is clearly a powerful personality with a gift for communication and considerable self-confidence. As a sophisticated and highly educated man of business, it is simply not credible for S.W. to maintain that he ineffectually submitted to the dealer’s frustration of his attempt to return the clock radios.

He said that a receipt for the clock radios was available, but ultimately failed to produce one for the court. I do not find it credible that this experienced sole proprietor, entitled to claim the clock radios as legitimate business expenses, had no receipt or credit card record of this purchase. I think it more likely that proof of purchase was not forthcoming to frustrate potential investigation of the narrative surrounding the frustrated return. He offered two different reasons for the original purchase. The one offered to the police on arrest was that the cameras would serve to deter theft.

This is inconsistent, in my view, with the hidden nature of the surveillance device secreted within. He told this court that the units were to record the goings-on at his displays for marketing research. If that was so, why were two units needed? Why was there a need for surreptitious surveillance? If either version is correct, why weren’t the units replaced with others if they were defective? The defendant suggests that he was indifferent to the deployment of the clock radios at his home.

The evidence clearly demonstrates that he went to considerable lengths to place each clock radio in a position where it was likely to capture naked images of his stepdaughter. He variously told family members that the purpose of the master bathroom unit was to provide the time to his wife or provide the sound of radio in the washroom. He was indifferent to whether the unit in the master bathroom gave the correct time, but was concerned that it was plugged in. He overrode his wife’s concern that the use of a hair dryer would be inconvenienced.

The ultimate removal of the clock radios was portrayed by S.W. to be completely coincidental to his discovery of the police investigation on August 4, 2009. He testified that he initially believed that the police interview of J. and E. to be connected with the family dispute over M. P.’s wrecked ATV. While J. thought that might be the purpose for the interview, it is difficult to understand why the Durham Regional Police would be interested in interviewing E. in respect of this matter.

After the two returned home and S.W. catches the Durham Regional Police in the act of searching his home, this explanation has no weight. It must have been instantly apparent to the defendant that there was no conceivable reason why the police would have attended his home for an investigation of the family ATV dispute. His wife’s refusal to respond to his completely understandable curiousity for the reason for the police interest must have alarmed S.W..

As Ms. S. would have had no reason not to tell him that the interview concerned the ATV matter, S.W. grasped at straws to inventpossible alternative reasons for police involvement. Several months earlier, A. had held a small but apparently uninhibited gatheringwhich needed some restraint by his grandparents. The evidence of J. makes it clear that this matter was a minor irritation, a day in thelife of dealing with a 20-something youth. The defendant inflated this history to attempt to supply an alternate reason for the policepresence.

S.W., as I have said before, told the court that after the police visit he suspected A.’s involvement in drug dealing, weaponsand stolen property possession or some shadowy connection with an alleged burglary of a nearby police officer’s home. None of thesesuggestions have the least basis in the evidence. None of these explanations can answer why S.W. angrily told the police officers toleave the home. S.W. responded in a strong and focused manner to the developments of August 4, 2009. Following the departure of the police, he closelyquestioned E. as to whether the police had examined his computer.

He then spent the evening and night in a highly-agitated state, repeatedly goingin and out of the house. He then left the home early the next morning with the clock radios. S.W. claims that he drove clear across theGreater Toronto Area to repair his bumper and meet an itinerant computer entrepreneur travelling in a white Dodge van. Theoverwhelming and inescapable conclusion is that S.W. removed the clock radios to destroy evidence. I believe the evidence of E. and J.that no one had suggested the disposal of the clock radios.

The issue simply had not arisen despite the fact that the incessant blinking ofthe unit in the master bathroom was an irritation. If he actually intended to sell the units to raise funds, he could not have done so in amore inefficient and witless manner, a manner utterly inconsistent with the obvious intelligence and efficiency of the defendant as wehave come to know him. If he actually believed the police were investigating his stepson, he could scarcely have chosen a worse day toleave his wife without his support.

The evidence of the removal of the clock radios is the most powerful evidence of consciousness ofguilt imaginable in these circumstances. I find that the defendant installed the hidden camera clock radio in E. S.’s bedroom for the purpose of viewing her in the nude. Althoughthe information does not specify the clock radio in the master bathroom that E. and others used for showering, I find the presence of theclock radio in that location to be circumstantial evidence for the purpose of the clock radio in E.’s room.

The evidence is silent on whether the defendant succeeded in viewing or recording naked images of his stepdaughter. I believe thedefendant’s intention, demonstrated by ongoing concerns for the position and power supply of the units, was obvious. The ongoingpreoccupation with plugging in the master bathroom unit and the positioning of the unit in E.’s bedroom are strong circumstantialevidence that the defendant was actually watching those locations surreptitiously on some monitor or screen unknown. The mens rea forthe offence is complete. The actions of the defendant went well beyond mere preparation.

As we know from Mr. Ehlers, the unit in E.’sbedroom was transmitting effectively. Ms. Pargana urges me to find that the offence is made out in full by the surreptitious watching proven in this case. The

section reads asfollows, “Everyone commits an offence who, surreptitiously, observes – including by mechanical or electronic means – or makes a visualrecording 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 orher breasts, or to be engaged in explicit sexual activity.” In my view, there must be evidence that the offender succeeded in watching or recording his target for the full offence to be made out. The only step remaining in this offence would require evidence that the defendant actually succeeded in doing what he enabled theunwitting Mr. Ehlers to do, and that is to watch or record E. S. in her bedroom, whether clothed or not. See R. v. Cline, (ON CA), [1956] O.J. No. 454 (Ont.

C. A.). As there is no evidence that S.W. actually succeeded in watching E., I rule that the offence of attempt commission of the offenceenumerated in Section 162(1)(

a) is made out. ********** FORM 2 Certificate of Transcript Evidence Act, Subsection 5(2)

I, Janice Montgomery, certify that this document is a true and accurate transcript of the recording of Regina v.

S.W., in the Ontario Court of Justice, held at Oshawa, Ontario on October 3, 2011, taken from Recording No. 2811-405-400784-20111003-092853, which has been certified in Form 1. ______________________________ ______________________________ DATE JANICE MONTGOMERY Transcript Ordered: October 3, 2011 Transcript Completed: October 17, 2011 Ordering Party Notified: October 18, 2011 JANICE MONTGOMERY Court Reporter c/o Ontario Court of Justice 150 Bond Street East Oshawa, Ontario L1G 0A2 ********** TO: KELLY GREENWAY BRUCE October 19, 2011 Barristers and Solicitors 114 King Street East Oshawa , Ontario L1H 7N1 Attn: I.

Paul Greenway ********** Regina v. S.W. REASONS FOR JUDGMENT – October 3, 2011 54 pages @ $0.55/page (3 copies/appeal) $ 29.70

HST#12688 4485 RT0001 3.86 TOTAL AMOUNT OWING TO DATE: $ 33.56 THIS IS MY ACCOUNT HEREIN: __________________________________ JANICE MONTGOMERY Court Reporter