Voyeurism conviction upheld for man who took screenshots during nude video chats

TORONTO -- Ontario's top court has upheld a voyeurism conviction for a man who secretly took screenshots of his then-girlfriend while she was naked and in sexually provocative poses during video chats.

The Court of Appeal for Ontario found the woman had a reasonable expectation of privacy and ruled that the man had violated the agreement that exists between consenting intimate partners.

Court documents show the pair, who cannot be identified due to a publication ban, were in a long-distance relationship between March 2010 and September 2011 and frequently spoke through video chat because they did not often visit each other.

At times, the woman, who lived in Thunder Bay, Ont., would appear nude in those chats. On some occasions, the man, a Toronto resident, took screenshots of her naked and saved them on his computer, court document show.

The woman testified during trial that she consented to appearing nude before him on live video but did not know he was capturing still images and preserving them.

The documents say that after the pair broke up, some of those photos were emailed to many people, including some of her professional contacts.

The man was acquitted on charges related to the distribution of the photos because it was not proven beyond a reasonable doubt that he had sent them. He was, however, convicted of voyeurism for taking the photos in the first place.

He then challenged the conviction, arguing his former partner could not have a reasonable expectation of privacy because she knew she was appearing nude before a camera.

He also alleged the judge was wrong to find he acted surreptitiously because there was no proof he intended to hide his actions, arguing "the complainant never indicated she did not want screenshots taken and the appellant never said he would not take any."

The appeal court said it waited to hear the appeal until the Supreme Court of Canada handed down its ruling in a landmark voyeurism case that touched on the reasonable expectation of privacy, among other things.

In that case, the Supreme Court found a high school teacher who video recorded his female students' chests with a camera disguised as a pen committed voyeurism.

The man in the video chat case argued the circumstances of his case were different because his then-girlfriend "admitted him within her circle of privacy by voluntarily exposing herself knowing she was doing so through a camera, a device the very purpose of which is to capture images," according to court documents.

He also said that because a screenshot "may be easily taken by depressing a single key," the woman must have agreed to the video chats knowing there was a risk one could be taken, the documents say.

But the appeal court agreed with the trial judge, who found the man had breached a "tacit agreement" by capturing the images.

That agreement "is that which exists between all intimate partners to consensual sexual activity -- namely, that neither one will exceed the parameters of what has been agreed to without obtaining consent," the appeal court wrote.

"In in-person consensual sexual relations, exceeding the parameters of what has been agreed to would likely breach the criminal law" it said. "There is a distinction between mere observation and recording a permanent image. This distinction is critical in this case."

The appeal court noted the issue of whether the accused acted surreptitiously rarely emerges in voyeurism cases, which typically involve a hidden camera. But it said the man's state of mind in taking the screenshots can be inferred from the circumstantial evidence.

"The complainant did not know the screenshots were being taken. The appellant never told the complainant he was taking screenshots; the subject of taking screenshots never came up during the parties' 400-odd video chats," it said.

"The complainant could see the appellant during their video chats, and he had taken the screenshots in a way that the complainant had not noticed. After taking the screenshots the appellant never mentioned them."

The conclusion that the woman had a reasonable expectation of privacy under the circumstances is consistent with lawmakers' objectives in creating the voyeurism offence to protect Canadians' privacy and sexual integrity, "particularly from new threats posed by the abuse of evolving technologies," the court said.