SELECTED CASE LAW
ONTARIO:
2In 2011 ONCJ 133, Mr. D, a 34-year-old male, was found guilty of four counts of voyeurism. Mr. D and the victim were in a relationship when Mr. D made a sexually explicit video of them with-out her knowledge or consent. Following the end of the relationship, Mr. D posted the video on a Facebook page and sent an email to 13 of her friends and family, inviting them to watch the video along with an attachment of the video.[1] The Crown failed to prove that the posting resulted in a general release of the video on the Internet,[2] but the posting was an aggravating factor on sentencing. The accused continued to express the view that the incident was blown out of proportion, suggesting that the woman wanted to be photographed, only complained when her family became aware of the video and claimed only to release the video after he found out of her infidelity, which the court found was untrue.
The court stated:
The most serious of the voyeurism convictions is that of the offence under s. 162(4) of the Code, of distributing the video. The distribution of the video was a planned and contemplated act. It was not the result of a spontaneous outburst of emotion. To effect his plan, Mr. DeSilva had to think first of the plan, then open a Facebook account specifically to execute his plan; he had to post the video to his Facebook page and he then had to send emails with the video as an attachment to some of the people who could not access Facebook. It took some time to both hatch and execute the plan.
The plan was designed to achieve maximum embarrassment. On Mr. DeSilva’s own evidence, he published the video to humiliate the victim. Given his past relationship with the complainant, he was aware of the fact the complainant held her brother in high regard and that he was someone she looked to for approval. It was no accident that Mr. DeSilva chose to forward the email to her brother to “prove” to the victim he possessed a sex video of her. In doing so he achieved his purpose of maximizing the embarrassment to the victim. In the words of the victim, he “tortured me by telling me he was sending the video to my brother.”
By forwarding the video to their mutual friends, he also ensured, by design, the continued and long-term victimization of the complainant. As expressed by Ms. S., it created a negative effect on her reputation by creating a negative image of her. As Madam Crown characterized it, “It poisoned the way people saw her.”
The embarrassment was not just isolated to the fact the video was disclosed but that the accused also identified the complainant, whose face could not be seen, as being the person on the video. This ensured that the victim’s embarrassment would be relived whenever she meets a person who she knew viewed or was aware of the video. The impact of this was demonstrated when the complainant in her victim impact statement explained how she felt when she had to leave a public function to avoid contact with one of the recipients of the video and how she had to change her gym, as one of the recipients also was a member of that gym.
I find it also aggravating that the material circulated was a video as opposed to a single still picture.[3]
His failure to take responsibility, blaming the victim, and failure to understand the severity on the victim’s sexual integrity were factors related to deterrence, as was his use of social media to conduct the violation.
The court stated:
In addition to the deterrence to the accused, this offence is one where general deterrence plays an enhanced role. With the proliferation of social networking sites, the opportunity to misuse such sites is significant and with devastating results to the victims; many of the impacts are significant and long lasting. This is one of those rare cases where general deterrence may actually play an enhanced and meaningful role in sentencing. The principle of general deterrence has been the subject of considerable judicial comment with great concern expressed over its over-use to justify incarceration, but it remains a recognized sentencing principle. Satisfying general deterrence when it plays an enhanced role is difficult within the context of a conditional sentence. The significant denunciatory effect of jail is needed in expressing the message.[4]
Mr. D also taunted the victim in further emails after she asked him to stay out of her life. He was sentenced to 7 months globally (5 months for distributing the video, 2 months incarceration for the voyeurism and 2 months for the criminal harassment (concurrent), as well as a probationary period of 2 years with an order to attend programming, a ban on weapons and a no contact order with the victim. With respect to Mr. PD’s distribution of a voyeuristic record-ing, the court wrote “The offence of distributing the video under section 162(4) is the most serious of the voyeurism offences. Had the video been shown to have been posted on the inter-net I would have considered a sentence of 6 months. However, in light of the fact its circulation was more limited, a sentence of 5 months is appropriate.”[5]
[1] As the court notes, “The plan was designed to achieve maximum embarrassment. On Mr. [PD’s] own evidence, he published the video to humiliate the victim. Given his past relationship with the complainant, he was aware of the fact the complainant held her brother in high regard and that he was someone she looked to for approval. It was no accident that [PD] chose to forward the email to her brother to ‘prove’ to the victim he possessed a sex video of her. In doing so he achieved his purpose of maximizing the embarrassment to the victim. In the words of the victim, he ‘tortured me by telling me he was sending the video to my brother.’ By forwarding the video to their mutual friends, he also ensured, by design, the continued and long term victimization of the complainant.” (emphasis added): 2011 ONCJ 133 at para 21
[2] 2011 ONCJ 133 at para 5. However, the court also finds that, “The accused lost control of the video when he posted it on Facebook and forwarded it as an attachment to emails. But for the fact that the accused was almost immediately contacted by the police resulting in him attempting to cover his tracks by closing his newly minted Facebook account, the distribution of the video would likely have been much more extensive. The steps taken to limit its distribution appeared more by fluke than design”: 2011 ONCJ 133 at para 34.
[3] 2011 ONCJ 133 at para 20-24.
[4] 2011 ONCJ 133 at para 52.
[5] 2011 ONCJ 133 at para 56.
Criminal Offence(s): Voyeurism