SELECTED CASE LAW
In 2012 ABCA 14, Mr. K, community youth worker, was convicted of voyeurism and possession of child pornography.
Mr. K allowed teenagers to drink and have sex in a spare bedroom of his apartment. He let three young men use his video camera to film their sexual encounters. The young men then sold the footage to Mr. K without the girls’ knowledge or consent.
One of the victims, 16-year-old Ms. JW, read her victim impact statement in court. The court found that her statements were, “to say the least, disturbing and epitomized that of a young teenage girl, whose trust was abused and has literally been scarred for life.” Ms. JW told the court that she “finds it extremely hard to trust another person and that is the most disgusting feeling, almost like you shower and shower but you can never really get clean.” She further stated that, “[Mr. K] has taken a part of me that should never be taken from a person: my self-worth.”40
Although the Crown recommended a global 15 to 18 months’ sentence, the trial judge sentenced Mr. K to 27 months in jail. The trial judge found the use of sophisticated camera equipment to be an aggravating factor on sentencing, writing:
Modern camera and telecommunication technology potentially allows a voyeur to use much more sophisticated mechanical and electronic tools that would be far more difficult for a complainant or other person to detect. I believe I may take judicial notice that commercial sources have developed in the past decade that provide to the public highly sophisticated surveillance and recording apparatus, such as pin-hole cameras, cameras disguised to appear to be innocuous objects such as pens, or smoke detectors, and wireless communications systems to connect cameras to re-cording devices and computers. There are no doubt legal and valid reasons for a person or business to employ these kinds of technologies, but their potential for misuse is easily understood when one reviews the instances where voyeuristic activities led to criminal convictions. I think it is a strongly aggravating factor that a voyeur uses sophisticated and difficult to detect technologies for illegal purposes for the simple fact of reducing the probability that the person being observed would detect that they were observed surreptitiously. Deployment of that kind of technology also indicates the voyeurism was a highly planned and premeditated activity. That is not to say that use of a ‘low-tech’ approach is a mitigating circumstance, rather that an unsophisticated observation scheme would be a neutral factor. 41
At trial, Mr. K was found guilty of two counts of possession of child pornography, one count of voyeurism, and one count of making voyeuristic materials.
On appeal, the Alberta Court of Appeal found that the sentence imposed was not unfit but reduced it to 18 months’ imprisonment because the nine-month sentence for child pornography offences should have been served concurrently with the sentences for other offences, rather than consecutively. However, the court of appeal also imposed an additional two-year probation.
Also see: 2012 ABQB 312 (Sentencing); 2011 ABQB 48 (Trial); 2010 ABQB 736 (Evidence); 2010 ABQB 640 (Amendment to indictment.
40. 2011 ABQB 312 at para 115.
41. 2011 ABQB 312 at paras 208-211.