In a recent decision from Ontario’s Court of Appeal (R v. Trinchi, 2019 ONCA 456), the court upheld the conviction of a man for committing “voyeurism”, a charge that was introduced to the Criminal Code of Canada in 2005. The act? Secretly capturing screenshots during consensual nude video chats.
The accused was in a long-distance relationship with the complainant, so the two often participated in Skype video chats. During some of those chats, the complainant willingly removed her clothing and appeared nude in front of the video camera. What she did not know was that the accused sometimes took screenshots of her nude body and saved the photographs to his computer. After they broke up, emails with nude photos of the complainant were sent to many people. The accused was charged both with voyeurism, for taking the screenshots in the first place, and for distributing the nude photos to others. At trial, he was acquitted on the distribution charge (since there was reasonable doubt whether he was the person who distributed the photos), but he was convicted for taking the screenshots in the first place.
The Crown was required to prove five elements to secure a voyeurism conviction: 1) that the accused did in fact observe or record the complainant; 2) that the accused did so “surreptitiously”, i.e. secretly and without the complainant’s knowledge; 3) that the complainant, during the consensual nude video chats, had a reasonable expectation of privacy; 4) that the complainant was nude at the time; and 5) that the accused intended to record the complainant while she was nude. The only issues before the court of appeal were whether the recording was done surreptitiously and whether the complainant had a reasonable expectation of privacy in the circumstances of the nude video chat.
The court confirmed that individuals’ privacy expectations for some body parts are higher than for others. In this case, the exposure of intimate body parts in the privacy of a bedroom attracted a high expectation of privacy. Even though the complainant willingly showed the accused her nude body, she did so with the belief that the video images would not be stored permanently. Although she consented to being observed nude, she continued to have a reasonable expectation that images of her nude body would not be recorded and saved.
As for whether the accused acted surreptitiously, the court relied on the fact that the complainant did not know that screenshots were being captured. That fact that she may have known it was possible to take screenshots during a video chat was irrelevant. The accused never told the complainant that he was taking screenshots, even though they had approximately 400 video chats, and he had taken the screenshots in such a way that the complainant did not notice what was being done.
For many people, this decision is consistent with the common sense proposition that just because someone consents to participate in a nude video chat does not mean they consent to having photographs of their naked body captured and saved. However, as evidenced by this case, that proposition is not universally accepted. By dealing with this evolving issue, the Court will help increase public awareness for consent issues which arise alongside technological changes.
This article was authored by David Litwin.