In March 2019, the Ontario Court of Appeal heard an appeal from a guilty verdict. The case involved a woman whose ex-boyfriend shared intimate images in the form of screenshots, which had been taken without the woman’s knowledge during a video chat on Skype. During their relationship, the woman and the defendant regularly engaged in video-chat, which the woman believed was not recorded. However, once the relationship ended, the defendant sent fake emails under the woman’s name to her family, friends, and colleagues. In the emails, the defendant included the intimate images, along with false information about the woman and her current romantic partner wanting to “open up” their relationship.
During the trial for this case, which was heard by the Ontario Superior Court of Justice in 2016, the defendant was found guilty of voyeurism. Since the new provisions of the Canadian Criminal Code relating to the consensual distribution of intimate images were not in force at the time of the offence, the Crown charged the defendant with voyeurism and distribution of the images. During the trial, the defendant was acquitted of the distribution charges and found guilty of voyeurism. The defendant was placed on 12 months probation.
The defendant appealed on two grounds. First, the defendant argued that the complainant could not have been said to have a reasonable expectation of privacy in circumstances where she voluntarily posed nude for the camera. Second, the defendant argued that the trial judge made a mistake in finding that he acted secretively, having made this determination through the complainant’s perspective rather than the defendant’s state of mind.
The Court of Appeal first examined the defendant’s contention that the complainant could not have been said to have a reasonable expectation of privacy in the circumstances. The court referred to the case of R v Jarvis, 2019 SCC 10 in which the Supreme Court of Canada set out the factors which must be considered to determine whether someone has an expectation of privacy:
- The location the person was in when they were observed or recorded,
- The nature of the impugned conduct (whether it consisted of observation or recording),
- Awareness of or consent to potential observation or recording,
- The manner in which the observation or recording was done,
- The subject matter or content of the observation or recording,
- Any rules, regulations or policies that governed the observation or recording in question,
- The relationship between the person who was observed or recorded and the person who did the observing or recording,
- The purpose for which the observation or recording was done, and
- The personal attributes of the person who was observed or recorded.
After considering these factors, the court found that the complainant did have a reasonable expectation of privacy in the circumstances of this case. In coming to this conclusion, the court pointed out two important factors to consider: first, an individual’s privacy expectations for some body parts are higher than for others; second, there is distinction between observing and recording. Since the images at issue were intimate images, which were recorded, the complainant had a high expectation of privacy.
The court then moved on to consider whether the images had been taken “surreptitiously,” or secretively. The defendant argued that the Crown must prove that the defendant had intended to act secretively. The Crown argued that the fact that the complainant was not aware she was being recorded was enough to satisfy this element. The court then considered the facts that the defendant had never mentioned taking the screenshots and that the defendant had taken the screenshots in a way that the complainant could not see that they were being taken. This evidence strongly suggested to the court that the defendant had intended to act surreptitiously in recording the images.
The appeal was dismissed, and the conviction remained in force. Although this case did not directly consider the offence of non-consensual distribution of intimate images, the court’s comments in clarifying the expectation of privacy in the contexts of intimate photographs is important.