2015 BCCA 210

2015 BCCA 210 Mr. B pleaded guilty to voyeurism and sexual assault.

After physically assaulting his common law partner, Mr. B moved out of the residence he shared with her and her son. Later, while cleaning Mr. B’s things, the ex-partner discovered a camcorder at the back of the television cabinet. Her son found a tiny surveillance camera among Mr. B’s possessions. The camcorder showed Mr. B touching and penetrating his now ex-partner while she was asleep or unconscious, surreptitiously filmed them engaged in consensual sex, and filmed her while she was in the shower. Mr. B also surreptitiously filmed another woman using the toilet. Other footage showed naked, underage girls rollerblading, children playing in the park, and children playing in their neighbourhood, with a focus on their genitals or lower body areas.[1] Mr. B’s computer contained additional explicit images of young girls.

At trial, Mr. B pleaded guilty to two counts of voyeurism and one count of sexual assault. During sentencing, the court noted that Mr. B’s actions profoundly affected the victim:

As [the victim] explains in her victim impact statement, the change to her life involved unrest, turmoil, anxiety, depression, and blows to her dignity, character, and self-esteem. Her sleep is seriously affected even three years later by anxiety and by recurring nightmares of a monster climbing walls to get through windows carrying a camera. The offences shattered her sense of safety in her own home, and left areas of her home and things in it feeling tainted. […]  Although [she] did not know until later, when the videos were found and viewed, that you, [Mr. B], had sexually assaulted her, she did notice discomfort, both vaginal and anal, at what she infers was the time of the sexual assault.[2]

The court also cited from a psychologist’s report, which stated:

[Mr. B] thought [the victim] was playing a ‘game’ with him, where she pretended to be sleeping, and described him waking her up with sexual activity as part of their sex life (i.e., “I played along”). He seemed to endorse some fairly entrenched attitudes related to the “games” women play (i.e., pretend to be asleep) and how they play these games because they want to engage in sexual activity. He was unable to think of alternative explanations for such behaviour. He also shared how women would initially say a particular sex act (e.g., anal sex) was off limits only to agree to it at a later date; it was for this reason that he believed it was okay to engage in these “off limit” behaviours while [she] slept.[3]

In its sentencing decision, the court stated:

Like the sexual assault offence, the voyeurism offences violated the essential human dignity of the people shown in several different ways. They show a complete disregard for those people’s autonomy, or their right to determine which, if any, of their most intimately private actions will be video-recorded and the recordings maintained by another person, outside their own control.[4]

Mr. B was ultimately sentenced to 2 years and 9 months’ imprisonment. Mr. B appealed that sentence, arguing that the recording of the sexual assault should not have been considered an aggravating factor and arguing for increased credit for his pre-trial custody. The appellate court held that the video-taping was relevant both to the sexual assault and the voyeurism charges and that the sentence was fit, however, Mr. B received additional credit for time served, reducing his time in prison to 2 years and 190 days.

Also see: 2014 BCSC 284 (Sentencing); 2014 BCSC 3 (Evidence); 2013 BCSC 1878; 2013 BCSC 307 (Charter challenge).

[1] 2013 BCSC 307 at para 14.
[2] 2014 BCSC 284 at paras 9-13.
[3] 2014 BCSC 284 at para 26.
[4] 2014 BCSC 284 at para 63.

Criminal Offence(s): Voyeurism, Sexual Assault