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APPEALS - Grounds - Question of law

Wednesday, June 12, 2019 @ 8:14 AM  

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Appeal by Trinchi from his conviction for voyeurism. Trinchi and the complainant were in an intimate relationship between March 2010 and September 2011. Trinchi lived in Toronto and the complainant lived in Thunder Bay so they often engaged in Skype video conversations via computer. Sometimes the complainant willingly appeared nude before the computer in sexually provocative poses. On some of the occasions, Trinchi took screenshots of the naked complainant and saved them on his computer. The complainant testified that she understood that her image was being captured as video and streamed over the Internet to Trinchi but that she did not know he was taking screenshots and preserving nude images of her. After the complainant ended the relationship, emails with nude photos of her were emailed to many people. Those photos were the screenshots taken by Trinchi during their video chats. Trinchi was charged with six offences arising from the distribution of the photos. He was also charged with voyeurism for taking the screenshots in the first place. Trinchi did not testify at trial but led evidence that another girlfriend had the motive, opportunity, and propensity to distribute the nude photos of the complainant. That evidence raised a reasonable doubt for the trial judge. Trinchi was acquitted of the six charges relating to the distribution of the nude photos but he was convicted of voyeurism. Trinchi took the position that the complainant did not have a reasonable expectation of privacy as she had willingly posed nude in the video chat, knowing she was doing so before a camera. He also submitted that the trial judge erred in law by finding that he acted “surreptitiously.”

HELD: Appeal dismissed. The complainant had a reasonable expectation that Trinchi would not take screenshots of their consensual sexual activity. While she necessarily expected to be observed by Trinchi in the live-streamed video, she did not expect that he would make a permanent recording of her naked. The complainant was entitled to reasonably expect that Trinchi would not record their sexual activities without her consent. The mental state required by the word “surreptitiously” in s. 162(1) of the Criminal Code was the intent that the subject not be aware that she was being observed or recorded. The facts supported the trial judge’s inference that Trinchi intended for the complainant not to know he was taking screenshots of her.

R. v. Trinchi, [2019] O.J. No. 2278, Ontario Court of Appeal, R.G. Juriansz, S.E. Pepall and P.D. Lauwers JJ.A., May 2, 2019. Digest No. TLD-June102019007