2016 ONCJ 6228

In 2016 ONCJ 6228, Mr. R posted naked pictures his ex-girlfriend on Facebook that he had taken with his webcam. An acquaintance of the woman alerted her to the posting. The victim, a 17-year-old girl, had not been aware that the photos had been taken. She was naked and posing provocatively, but Mr. R did not appear in the photos except for one, where a part of someone else’s body could be seen in the photo. R was convicted of surreptitiously filming the victim while engaged in explicit sexual activity. On appeal, the defense argued that the Crown had failed to make out a case on the “explicit sexual activity” element of the charge. At the trial level the court took into account the victim’s evidence that these photos were taken while engaged in session of sexual activity, making an inference that from the content of the photos that sexual activity had “occurred, is occurring, or is about to occur”.

At the trial level, the Court found:

The depiction of the naked complainant in the applicant’s bedroom while on the applicant’s bed, in circumstances where the images were secured during the course of an intimate relationship between the applicant and complainant, are factors that might reasonably be relied upon to conclude sexual activity either has occurred, is occurring, or is about to occur. […] Consideration of the parts of the bodies depicted, the nature of the depiction; the circumstances and context wherein the images were captured; consideration of all the surrounding circumstances, including such factors, as noted, as the age of the complainant and applicant, the nature of their relationship and the testamentary reference to the applicant’s reported intention to release naked images of the complainant for wider public viewing; are all factors that could form the basis for a reasonable conclusion that “explicit sexual activity” was depicted by one or more of the images, and not simply so-called “sexualized nudity.”[1]

On appeal the court held that:

[…] the inferences drawn by the learned trial judge were entirely appropriate on a motion for a directed verdict. A review of the photographs themselves, particularly the photograph marked as Photograph 6, in my view fall well within the description of “explicit sexual activity”, as particularized in the following quotation of the Supreme Court of Canada in Sharpe at paragraph 49. I conclude that “explicit sexual activity” refers to acts which viewed objectively fall at the extreme end of the spectrum of sexual activity — acts involving nudity or intimate sexual activity, represented in a graphic and unambiguous fashion, with persons under or depicted as under 18 years of age. The law does not catch possession of visual material depicting only casual sexual contact, like touching, kissing, or hugging, since these are not depictions of nudity or intimate sexual activity. Certainly, a photo of teenagers kissing at summer camp will not be caught. At its furthest reach, the section might catch a video of a caress of an adolescent girl’s naked breast, but only if the activity is graphically depicted and unmistakably sexual . . . (For a discussion of such concerns see B. Blugerman and L. May, “The New Child Pornography Law: Difficulties of Bill C-128” (1995), 4 M.C.L.R. 17)

Objectively viewed, what is depicted in Photograph 6 falls well within the definition of “explicit sexual activity”. The learned trial judge did not make any error in denying the defence motion for a directed verdict. The appeal is therefore dismissed.[2]

The Court made particular note of the photo where the body parts of another person could be seen in the images when making this conclusion.

[1] 2011 ONCJ 905 at para 25, 29.
[2] At para 42-43

Criminal Offence(s): Voyeurism