2015 ONCJ 741

In 2015 ONCJ 741, Mr. T hid a camera in a towel and filmed several women’s buttocks while they were sun bathing at a public beach. He had been charged previously for similar criminal conduct and was on probation, which included terms that he not go to that particular beach. He was charged with mischief, voyeurism and criminal harassment. Mr. T had filmed the victim on two other occasions and she had told him that he was making her uncomfortable and asked him to stop.

In regard to the mischief charge, the judge found that:

I further conclude the defendant was very much aware that photographing, by zooming in on private areas was interfering with the lawful use and enjoyment of the beach by women. At the very least he was aware that this activity would probably cause distress and was reckless to its occurring (see s. 429 of the Criminal Code). Firstly, unlike in Lebenfish, he did it secretly. He covered his camera, I find, because he knew that women would be upset, and unlikely to continue their activities on the beach if they discovered him. Secondly, when he was discovered twice in 2010 by the complainant, she made him aware of her discomfort. When confronted, he denied responsibility then retreated (even leaving his video camera behind on the second occasion). So, at the very least, he had been made aware on two previous occasions that his actions caused interference with enjoyment of a public beach, and his words and actions showed that he knew that.[1]

In regard to the voyeurism charge, the court found that the women had a reasonable expectation of privacy on a public beach stating:

In my view, it is entirely reasonable to expect that, while wearing a bathing suit on a public beach, you will be seen, maybe ogled and possibly find your way into a photograph. It is equally reasonable to expect that close-ups of your private areas will not be captured as a permanent record for the photographer, and potentially millions of others online.[2]

However, the court held that the Crown failed to prove beyond a reasonable doubt that the images were taken for a sexual purpose, stating:

In my view, while a conclusion that the defendant was photographing women’s buttocks for a sexual purpose is the most likely, it is not the only rational conclusion. I cannot completely discount the possibility that he made these recordings for an aesthetic purpose. There are many artists (Robert Mapplethorpe, for example) that create nude images that are designed to be appreciated for reasons other than sexual gratification. In my view, consent to be photographed present in those cases but not here is not relevant to the purposes for which the photographs were taken or used.[3]

In her victim impact statement, the victim stated:

In a place where I should feel comfortable in a bathing suit I no longer do. Mr. Taylors complete disregard for privacy has made me question other peoples motive while at the beach, making it a less likely place to visit. Mr. Taylor has created an ongoing sense of fear and paranoia that where ever I go or what ever I am doing it is an unwanted invitation to be unwillingly video taped. On a daily basis I often find myself questioning places of expected privacy; public bathrooms, changing rooms, gyms or even what I am wearing. I no longer dress with the intent of functionality and personal expression but with the fear that what I am wearing can make me a victim of being taped without consent. I often try to avoid these places having experienced that some people may have no regard for privacy and will go to lengths to violate it for their own gain.[4]

Mr. T was found guilty of mischief but not voyeurism or criminal harassment. He was sentenced to seven days incarceration, served intermittently, and 2 years of probation, including orders that he not attend that beach or contact either of the victims. The fact that he had not transmitted the images was considered a mitigating factor.

Also see: 2015 ONCJ 449

[1] 2015 ONCJ 449 at para 49.
[2] 2015 ONCJ 449 at para 32.
[3] 2015 ONCJ 449 at para 35.
[4] 2015 ONCJ 741 at para 5.


Criminal Offence(s): Mischief in Relation to Data