SELECTED CASE LAW
In 2017 ONSC 6900, Mr. P was acquitted of two counts of sexual assault and one count of voyeurism at the trial level. The victim, Ms. H, stated that she consented to sex with Mr. P so he would stop hitting her and leave. She also stated that she was aware Mr. P had a cellphone and may have been recording their encounter. The acquittal was appealed, with the Crown arguing in part that the trial judge inappropriately interrelated aspects of the voyeurism offence. On the voyeurism charge, the Crown argued that the trial judge only took into account whether the accused surreptitiously observed the victim, not whether he surreptitiously videotaped her. The appeal judge found that the trial judge properly found that the observation was not surreptitious because the accused, who made the QuickTime Movie and was “actively participating in the sexual activity, filmed. Actively participating is the opposite of something done surreptitiously or secretly.” He also held that Ms. H was aware of the presence of a cellphone being used. The appeal was dismissed.
 The trial judge found that the complainant, Ms. H, had consented to sex with the accused be-cause she wanted to and “so that he would stop hitting her and leave”; that her lack of visual injuries were inconsistent of the assault she described; and that she was aware that she may have been photographed or filmed. The Crown also argued there was a misinterpretation of evidence because the judge viewed the whole 20-minute video they submitted as an exhibit, rather than only the portion that was relevant to the case. The trial judge watched the whole 20-minute video because when the video was made an exhibit there was no indication that the judge should only view a certain portion of the video.