SELECTED CASE LAW
ONTARIO:
In 2014 ONCJ 130, the offender, Mr. L, took photos of women at a clothing-optional beach. One woman told him it was “not okay” for him to photograph her without her consent and requested that he delete the photos. Mr. L agreed to delete the photos he took of her naked body. She later alerted the lifeguards, who called the police. Mr. L was subsequently charged with voyeurism and mischief.
At trial, Mr. L asserted that he photographed the nude women for “aesthetic” and not sexual purposes. He further argued that there were no signs prohibiting photography at the beach. The court held that he did not photograph the women surreptitiously. The court also found that while his victims had a subjective expectation of privacy in the circumstances, Mr. L did not photograph them “in circumstances that give rise to a reasonable expectation of privacy.”[1] Ultimately, the court determined that, “The same photographs preserve no more of the nudity the beachgoers elected to expose than would observation by the naked eye [,] [and] [t]here is no evidence of concern that any nude photography would be disseminated to others by any means.”[2]
With respect to the mischief charge, the court found that Mr. L did not willfully interfere with his victim’s enjoyment of the property. The court wrote:
I have already held that [the victim’s] privacy expectations did not, in all the circumstances, reasonably include an expectation that she would not be photographed while sunbathing on a nude beach. To now hold that her subjective annoyance at such photography makes out the offence of mischief would permit unreasonable sensibilities to dictate, indeed criminalize, otherwise lawful conduct. Imagine a teenage boy who, on occasion, would look up from his book and gaze momentarily at the nude [victim] as she frolicked by the shoreline. Imagine, further, that [the victim], took offence on learning of the adolescent’s conduct, sincerely believed that his glances had ruined her day at the beach and reported the event to the police. Given the obvious limits of reasonable privacy expectations for nude sunbathers on public clothing optional beaches, I simply cannot conclude that this hypothetical interference with [the victim’s] subjective expectation of privacy, no matter how earnestly held, could ground a charge of mischief for interference with her lawful enjoyment of the beach.[3]
Mr. L was acquitted on both charges.
[1] 2014 ONCJ 130 at para 40.
[2] 2014 ONCJ 130 at para 40.
[3] 2014 ONCJ 130 at para 49.
Criminal Offence(s): Voyeurism