Toronto has a clothing optional public beach - designated as such by city bylaw in 2002. Some people exercise this option to participate in the nudist or naturalist lifestyle; some just for the fun of the experience. It is, not surprisingly, a popular beach with many simply in attendance to ogle. In 2005 Parliament enacted Bill C-2 which saw the creation of the criminal offence of voyeurism.
On Labour Day weekend 2012, HL took his 9-month old son and camera and set out for the clothing optional beach. He was arrested later that day for having taken dozens of pictures of nude women. He did so in plain view and when confronted by one of his muses he agreed to delete the photos he had taken of her.
HL was charged with voyeurism; Green J was tasked with deciding if his conduct amounted to same: 2014 ONCJ 130.
The essential elements of voyeurism as charged in the information required that HL:
- Surreptitiously have made the visual recording
- Of nude persons
- In circumstances that gave rise to a reasonable expectation of privacy.
There was of course no dispute that HL had taken the 47 nude photos of women filed as exhibits in the trial. At issue was whether the photos were shot surreptitiously and whether the there was a reasonable expectation of privacy at the clothing-optional beach.
The Crown argued that despite the fact that HL's conduct was carried out in plain view, it was nonetheless surreptitious because all of the photos were taken from behind, with the women facing away from the camera. Thus, the effect was that HL's conduct was surreptitious to the women he was photographing.
Green J was dismissive of this argument holding, inter alia, that HL's conduct was “if anything, public (if not in fact conspicuous) — the antithesis of "surreptitious" [para 26]. He further noted that “neither the absence of consent or awareness on the part of the person observed or recorded is an expressly requisite feature of the offence set out in s. 162” [para 28].
Furthermore, HL testified that he intentionally and conspicuously photographed women from behind “so as to capture them in natural rather than contrived attitudes” [para 32]. That testimony was accepted by Green J.
Despite finding that the offence had not been made out due to the ‘conspicuous’ rather than surreptitious nature of the making of the visual recordings, Green J nonetheless addressed the issue of reasonable expectation of privacy.
Green J was prepared to infer that the woman who asked HL to delete her photos had a subjective expectation of privacy and that other beach-goers may have been displeased with his conduct. However, the court concluded that the circumstances did not give rise to a reasonable expectation of privacy for the following reasons:
- The beach is public
- The beach is open to both clothed and unclothed
- Those who do go nude do so knowing that they will be observed
- Those who remove their clothing know that many on the beach carry cameras
- No rules or by-laws prohibited the taking of photographs
- No sign discouraged the use of cameras
- The photographs taken were of mature females
- The photographs revealed no more nudity than would have been observable to any other beach goers
- There was no concern that the photography was to be distributed in any way [@para 40].
Green J concluded by offering the following:
Without pre-deciding the issue or endeavouring to influence any other jurist, I venture to suggest that a change in circumstances — such as the installation of prohibitive signage and appropriate by-law amendments — could lead to a recalibration of "where the 'reasonableness' line should be drawn" with respect to the visual recording of nude beachgoers at the (beach) [para 41].
Of note since the summer of 2013 the clothing optional beach has had a “photography prohibited” sign.