2011 BCSC 1397

In 2010 BCPC 182, Mr. R was convicted of voyeurism and possessing child pornography at trial after surreptitiously recording people at a park from his van.

Police discovered Mr. R in his vehicle, half-naked and surrounded by wadded tissues. Mr. R told police that he was filming “yummy mummies.” After reviewing the camera and recorded footage, police discovered that Mr. R has actually been filming young (sometimes naked, mostly female) children at the playground. Some footage showed close up images of the genitals of young girls either clothed or when their diapers or clothing were being changed at that park.

At trial, the court found Mr. R guilty on all counts.

Mr. R appealed the conviction, asserting that the trial judge erred in finding that video subjects had a reasonable expectation of privacy at the lakefront park.[1] The British Columbia Superior court rejected this argument, stating:

Technology has the potential to dramatically change the reality of all such considerations and expectations. In this case the videotape dramatically magnifies and permanently captures the genital areas and buttocks of the young girls who were photographed. It is as though, as I have said, an individual was positioned but a few feet away from these children. Thus, each reasonable expectation is altered. Observations are not fleeting, they are extended in the sense that the video is more than 40 minutes long and permanent in the sense that a recording has been made. Observations are not muted, they are enhanced. Furthermore, the observer is not removed or distant but is, in real terms, immediately adjacent to the child being observed. There are few privacy interests which are more personal and more intimate or which impinge on personal dignity more forcefully than those captured on this videotape.[2]

The court also rejected Mr. R’s other grounds for appeal: (i) that the trial judge erred by admitting the video into evidence under s 24(2) of the Charter, and (ii) that the trial judge erred by finding that the recordings constituted child pornography.

The appeal was dismissed.

Also see: 2010 BCPC 182.

[1] 2011 BCSC 1397.
[2] 2011 BCSC 1397 at para 110-111.

Criminal Offence(s): Child Pornography OffencesVoyeurism