SELECTED CASE LAW
In 2016 ONCJ 171, Mr. W, a 41-year-old man, was caught taking videos of a young woman whose underwear was showing as she bent down in a store with his cellphone. Mr. W had previously been arrested at the same location for taking an “upskirt” photo of a 16-year-old woman. Upon searching Mr. W’s residence the police seized seven hard drives, a jump drive, four DVDs, 4 SD cards, three cellphones, and a camera. On some of these devices the police found 14,000 images of unknown women taken without their consent between 2005 and 2011, including upskirt photos and photos of women’s buttocks area while in public. Mr. W had taken these photos using a “spy cam” application that made it appear as though the user was using the phone for another purpose or locked when in fact it was being used to take a photo or video. The images and videos included multiple images of his co-workers’ upper leg area, breast area, and underwear when it was exposed, taken surreptitiously while in the office. It included twenty-five videos of him masturbating and ejaculating in his boss’ office, including into her coffee cup and on her desk, and touching his penis on her phone. He also secretly filmed a woman in his basement taking a shower and images of a woman’s bedroom. The court stated:
[…] Voyeurism offences violate the essential human dignity of the people shown and are a serious invasion of their privacy and personal space. In this case, as I have already set out, the impact on the victims was particularly significant. The disclosure by the police to the victims of their being videotaped surreptitiously by Mr. W. was shocking and emotionally overwhelming, causing significant fear and anxiety in the victims.
He pleaded guilty to six charges including mischief, voyeurism, and unlawfully entering a dwelling house. Upon sentencing the court stated:
Therefore, given the nature of smart phones today, this increases the need for sending a message to the general public that taking pictures of individuals in compromising positions, for example, women who might be wearing a top that is loose and if they bend over, shows cleavage. It is inappropriate to take photographs of that. It is inappropriate to take pictures of a man or a woman bending over and ex-posing their buttocks because the pants they are wearing are too tight or too low in the hip. That is what Mr. W. did and apparently that is what a lot of other people do, because it appears the Internet is filled with this type of pornography. Therefore, in my view, this is one of those cases where I think general deterrence may actually play an enhanced and meaningful role in sentencing.
He was sentenced to an 18-month imprisonment, a section 110 order for 10 years, 3 years of probation, a drug prohibition order, an order not to have an electronic device that can take pictures, and not to access a computer or device with internet access unless permitted by his parole officer or for work, an order to provide a DNA sample, a restitution order, and a victim surcharge order.
Also see: 2016 ONCJ 772
 2016 ONCJ 171 at para 82.
Criminal Offence(s): Mischief in Relation to Data