daleybyers, Author at Toronto Criminal Lawyers
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Voyeurism

Voyeurism

Let’s Take a Peek at Voyeurism  section 162 Criminal Code

Cases of voyeurism seem to be constantly in the news.  On October 3, 2019 it was reported that Waterloo police had another Peeping Tom investigation in the Waterloo university district involving a cell phone that was seen being held. up to a kitchen window.  About a week earlier a similar complaint was made regarding a cellphone up to a bedroom window. At Daley, Byers we have defended most every imaginable scenario of voyeurism allegations; from cell phone pictures up dresses, to cameras in air vents, to a camera in toothpaste tube carefully placed in a public shower, to peep holes through walls, to cell phone pictures in change rooms and bathroom stalls, to a simple case of a Peeping Tom and the list goes on and on. 

There are a number of potential defences to the charge of voyeurism

Section 162 if the Criminal Code creates the offence of voyeurism and it reads as follows.

  1. 162 (1)  Every one commits an offence who, surreptitiously, observes, including by mechanical or electronic means- or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(a) the person is in a place in which a person can reasonable be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity,

(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state, or engaged in such an activity; or

(c) the observation or recording is done for a sexual purpose

(5) (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 5 years; or

     (b) is guilty of an offence punishable on summary conviction.  

Obviously, an expectation of privacy is crucial to the charge of voyeurism.  The crown must prove that the complainant had an expectation of privacy in the circumstances of the case.

In addition, many times the case is contingent upon pictures being found on a cell phone.  The search of the phone must be legally authorized failing which the pictures are not likely to be admitted into evidence.

In cases, where pictures are found on a phone, the Crown must prove that the pictures were taken without consent.  Often the search may reveal pictures, but the individuals cannot be located (up dress pictures, pictures on a beach, pictures in a shopping mall).  Although there may be a collection of pictures, the Crown must prove the pictures were taken sureptiously.

In some cases of voyeurism, it is possible to resolve by way of a plea to another charge.  We recently resolved a charge of voyeurism to a charge of mischief contrary to s. 430 (c) – obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property.  It is also important in voyeurism cases to be cognizant of the requirement for registration under the Ontario Sex Offender Registry often referred to as Christopher’s Law in certain instances and how this can be avoided.

If you are charge with voyeurism give us a call for a free consultation and hopefully we will be able to assist you through the process for a  favourable result.

Distribution of Intimate Images “revenge porn”

Distribution of Intimate Images “revenge porn”

Courts are issuing Harsher sentences

Section 162.1 of the Criminal Code creates the offence of publishing, distributing, transmitting, selling or make available or advertise an intimate image of a person without that person’s consent.

The definition of intimate image any visual recording made by any means including a photographic, film or video recording;

  1.  In which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;
  2. Where at the time of the recording there were circumstances that gave rise to a reasonable expectation of privacy;
  3.  Where that reasonable expectation of privacy exists at the time of the offence. 

Distribution of intimate images is often referred to as revenge porn.  It most often occurs where a couple has originally created a consensual recording, or one person may have sent a provocative picture to a partner on the presumption that it will remain between the 2 of them.  Then of course, they break up and the intimate image(s) are then displayed on social media of some sort.  

According to a recent article in the LAW TIMES quoting form research published in the “Canadian Journal of Law and Society” on May 13 Judges are imposing harsher sentences as a means of sending a message to the general public (general deterrence) that this activity will not be tolerated.  Ie. “Think before you text”. 

The report states that Judges are viewing the harm caused by the distribution of intimate images as extremely impactful.   

Prior to the easy access of social media, taping photos on bathroom stalls or distributing video tapes in mailboxes were methods used to distribute intimate images.  However, with the arrival of social media and the scope of the publication and distribution now available, the courts have stated that the digital/online technology has made the act of the distribution of intimate images more impactful.

With respect to the appropriate sentence, the factual context is important.  

Is the distribution of an intimate image a youthful act of emotional upset due to a break up?

Is the distribution of an intimate image a continuation of a long abusive domestic relationship?

Where and how was the intimate image distributed?  For example, in some instances the pictures/videos are sent to family members or close friends of the individual depicted in order to cause extreme embarrassment.  In some case the intimate images are shown to friends as a form of showing off.  

In some cases, the intimate images are displayed on porn sites for the world to see.  

Also, the perspective of the complainant will be considered by the Crown and the Court with respect to resolution and disposition.

Regardless, it is clear that the Courts are treating the distribution of intimate images as an extreme violation of privacy.

 

The Criminal Code sets out the range of sentence at s. 162.1(1).

If the Crown proceeds by way of indictment  – jail up to 5 years

If the Crown proceeds by way of summary conviction – up to a $5000.00 fine, up to 6 months in jail or a combination of both.

There are a number of defences to the charge of distribution of intimate images.    

Another closely related charge to the distribution of intimate images is the offence of Voyeurism as it includes the surreptitious creation of recordings of a  person who is in circumstances that give rise to a reasonable expectation of privacy. We will discuss this charge of Voyeurism in our next article.

Another Hit and Run

Another Hit and Run

Another Hit and Run (Fail to Remain at the Scene of an Accident H.T.A)

(Failure to Stop at Scene of Accident s. 252(1) Criminal Code)

Toddler injured in Toronto October 13 – the driver and passenger failed to remain! On Sunday morning as reported in the Globe and Mail a hit and run driver severely injured a 20-month-old boy who was in a stroller on a sidewalk. Apparently 2 individuals exited the motor vehicle and saw the toddler’s injuries.  One got back in the car and drove away, the other allegedly ran away.  Fail to remain at the scene of an accident coupled with leaving someone injured is considered by the Courts to be both cowardly and selfish act.  It is assumed that the failure to remain is to avoid taking responsibility for their conduct.  In our 38 years of criminal law defense work, I have come across numerous reasons that individuals have failed to remain at the scene of an accident. 

Some examples of the reasons former clients have failed to remain:

  1. They don’t have insurance on their motor vehicle.
  2. Their car contained a significant number of drugs.
  3. They had been drinking and wanted to avoid an impaired driving charge.
  4. They were trying to avoid the consequences of the actual driving that caused the accident. 
  5. They had to get to work.
  6. There was a warrant out for their arrest.

With respect to the incident this weekend on Toronto streets, Mayor John Tory again stepped in to provide his views on the inadequacies of the judicial system.  “I fully support an increase in penalties for those involved in collisions with pedestrians and steeper consequences for those who flee the scene.”

Quite frankly I wish municipal politicians would keep their views regarding the efficacy of the judicial system to themselves.

Firstly, there are significant penalties imposed in accident cases.  The Courts consider, the nature of the driving, the sobriety of the driver, the injuries (or death), and of course whether the accused remains at the scene of an accident. In the case of R. v. Muzzo, the court imposed a 10-year sentence. 

The Criminal Code provides:

  1. Dangerous driving s. 249 (also referred to as dangerous operation)
  • Up to 5 years in jail
  1. Dangerous driving cause bodily harm s. 249(3)
  • Up to 10 years in jail
  1. Dangerous driving cause death s. 249(4)
  • Up to 14 years in jail
  1. Fail to remain (Fail to Stop at the Scene) s. 252
  • Up to 5 years in jail 
  1. Fail to remain cause bodily harm (Fail to Stop at Scene)s. 252 (1.2)
  •  Up to 10 years in jail
  1. Fail to remain cause death (Fail to Stop at Scene) s. 252(1.3)
  • Up to life in jail

There are numerous other charges that carry significant penalties.

Criminal Negligence cause bodily harm  s. 221

  • Up to 10 years in jail

Criminal Negligence cause death    s. 220

  • Up to life in jail

Flight from Police s. 249.1 

  • Up to 5 years in jail

Flight from Police cause bodily harm s. 249.1 (4)(a) 

  • Up to 14 years in jail

Flight from Police cause death s. 249.1 (4)(b)

  • Up to live in jail

 

The Courts do consider all the aggravating factors when deciding on the appropriate sentence and attempt to balance those factors against the individual circumstances of the accused.  Long jail sentences are regularly imposed in cases of significant injury or death.

With the increase in the number of cars on the streets and the increase in the power and speed of vehicles, it is important that driving safely be emphasized.  The new laws on distracted driving clearly have helped. Perhaps photo radar should be re-implemented as it will slow people down.  

The real point of this article, however, is to clarify that the Courts are doing their job, the Justice system is working, and in cases of Fail to remain (Leave the Scene as it is referred to in the Criminal Code), where there is bodily harm or death, the sentence imposed will take into account the gravity of the situation. Note that the Courts can and do impose a driving prohibition and a license suspension is automatic under the Highway Traffic Act in addition to what the rest of the sentence may include.  

As defense counsel it is our job in these cases to determine if the Crown can actually prove the charge. If not we will go to trial as everyone is innocent until proven guilty.   On the other hand, if the Crown can prove the charge it is our job to present mitigating circumstances so that a proper balance can be achieved between the competing interests of general deterrence and personal rehabilitation.  

Theft at L.C.B.O outlets is rampant

Theft at L.C.B.O outlets is rampant

For the past 6 months the police in cooperation with the L.C.B.0. has conducted an undercover operation in Vaughan using both plainclothes and uniform officers.  The result is that 23 individuals have been charged theft after an investigation into 170 thefts from only 6 L.C.B.O. outlets in Vaughan. The total value of the thefts over a 6 month period is $60,000.00 – that is a lot of booze to slide out the door unpaid for.  In addition, Toronto police are looking for a Toronto man who they believe has been stealing bottles of liquor from the L.C.B.O. since June 5, 2018, totaling a value in excess of $38,000.00.

With respect to the Vaughan operation, there were a total of 86 charges. In some instances, upon arrest, the individuals were found to have unlawful possession of weapons.

Theft is found in Part IX of the Criminal Code.

Offenses Against Rights of Property 

The provisions that deal with the most common allegations of theft are found at sections 322 and 334.

  1. 322 provides the actual charge itself.
  2. 334 sets out the punishment.

In essence, there is a theft under $5000.00 charge and a theft over $5000.00 charge.  

On a theft over $5000.00 the Crown can only proceed by indictment and if convicted the accused is liable to imprisonment for a term not exceeding 10 years.

On a charge of theft under $5000.00, the Crown can choose to proceed by way of indictment or by way of summary conviction. If the Crown chooses to proceed by Indictment the accused is liable to imprisonment for a term not exceeding 2 years.  If the Crown proceeds by summary conviction, the accused is liable to imprisonment not exceeding 6 months.

Most cases of theft involve shoplifting.  A first-time shoplifter is not likely to face a jail sentence at all.  In many cases, the charges are diverted and withdrawn by the Crown after completion of the diversion program.  

Theft from an employer is considered by the courts as very serious as it involves a breach of trust.  In the same way, theft from a vulnerable person is also considered to be very serious by the Courts. 

Obviously the more that is alleged to have been stolen no matter the context, the greater the potential punishment.  Put simply, theft of a candy bar is not treated the same as theft of tractor-trailer full of goods.

Possession of property obtained by crime can be related to theft charges.  Often times an accused is charged with both theft and possession of property obtained by crime.  If the police do not have reasonable and probable grounds to prove the theft charge, the charge of possession of property obtained by crime (possession of stolen property) can be laid on its own.

Recent possession of a stolen property (the police find a person in possession of stolen property shortly after the theft has occurred) can be used as evidence to establish the actual theft itself.

In addition, with respect to the charge of possession of property obtained by crime the doctrine of willful blindness can apply.  This simply means that if it is too good to be true, then it is too good to be true. For example, if you purchase $3000.00 watch for $100.00 the court is likely to find that you were willfully blind to the fact that the watch was stolen and you could be convicted.

Over our 38 years of criminal law defense work, we have defended most everything you can imagine when it comes to theft charges from millions of dollars of goods to the small shoplifting charges and everything in-between.  When large amounts are at stake we have defended Mareva injunction applications where the alleged victim tries to tie up the assets of our client. In addition and closely related to theft charges we have defended innumerable fraud allegations;  insurance frauds, bad cheques, mortgage fraud, credit card fraud, credit application fraud, medical benefit fraud, government assistance benefits fraud, to something as minor as a price tag switch or a dine and dash. Forgery, utter forged document and false pretense are also offenses that can arise in the context of a theft allegation.

Theft of 60,000.00 worth of booze from just 6 L.C.B.O outlets over a 6 month period is quite astonishing.  However, shoplifting is a significant issue in all retail stores and it drives up the price of everything as the stores must accommodate for loss.  Hopefully we will see a change in the future with respect to the amount of theft that is taking place. We all know that we dare not leave a phone, or a jacket unattended in fear of theft.  Carjacking is prevalent (cars being entered at night). Just this week 2 private golf courses had lockers broken into with significant theft. Remember to lock the doors.

Boy Gets Murdered In Hamilton

Boy Gets Murdered In Hamilton

14 year old murdered over a “bike”  What is happening in this country?

Yesterday a 14-year-old boy was assaulted in Hamilton outside his school and stabbed to death allegedly over a bicycle.  This case draws attention to so many possible legal issues. Problems with youth crime and appropriate punishment. This is an obvious case of bullying.  What was the role of social media? Was social media bullying part of this tragedy as well? The allegations as reported indicate that the young boy was attacked by a number of others while on watchers recorded the incident on the cell phones.  Some people are demanding that those that were recording the incident be charged with aiding and abetting because by the very nature of recording the incident they encouraged and incited the crime. 

Again, we have the issue of the presence of weapons in our community. 

If the accused had not succumbed to his wounds there are a number of charges in the criminal code that would have applied – aggravated assault, assault cause bodily harm, assault with a weapon, weapons dangerous.  

However, the suspects, in this case, will most certainly face first-degree murder charges.  Other possible charges are 2nd-degree murder and manslaughter.  In fact, at the time of writing 2 of the 4 (so far) are charged with first-degree murder. The other two were arrested for first-degree murder but again as of the time of writing have yet to be formally charged. 

The age of those charged will have a significant impact on the process.  There are 4 individuals, 14, two 16-year-old persons and one 18 years old.  Those under 18 are youths and start with a prosecution under the Youth Criminal Justice Act.  The Crown can apply to have them tried as an adult and punished as an adult. 

Adult Sentences

The Youth Criminal Justice Act does allow judges to impose an adult sentence on a youth who is found guilty of a serious offense and was 14 years of age or older when the crime was committed. In fact, prosecutors are obligated to consider seeking an adult sentence when a youth is found guilty of murder, attempted murder, manslaughter or aggravated sexual assault. However, the Act allows provinces to raise the age at which this obligation applies to 15 or 16.

When a judge decides to impose an adult sentence, the Criminal Code penalties for adult offenders are applied to the youth. This can include mandatory minimum penalties and sentences of up to life imprisonment. However, no portion of either an adult or youth sentence can be served in an adult prison while the youth is still under the age of 18.

The 18-year-old is an adult under the law and if convicted could face a life sentence of 25 years without parole.  

This was clearly a senseless crime, committed by young individuals.  However, the context is most disturbing, the bullying – 4 attacking 1, the use of a weapon, the fact that onlookers stood by and used their cell phones to video.  The issues are simple and complex at the same time. What can we do to prevent this type of tragedy in the future? One child is gone, a family is devastated, 4 others are facing a life sentence in jail.  

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