WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jarvis, 2017 ONCA 778

DATE: 20171012

DOCKET: C61396

Feldman, Watt and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Ryan Jarvis

Respondent

Christine Bartlett-Hughes and Jennifer Mannen, for the
    appellant

Susan M. Chapman and Jennifer Micallef, for the
    respondent

Heard: November 29, 2016

On appeal from the acquittal entered on November 10, 2015
    by Justice Andrew J. Goodman of the Superior Court of Justice.

Feldman J.A.:

INTRODUCTION

[1]

The respondent was acquitted at trial of the offence of voyeurism,
    contrary to s. 162(1)(c) of the
Criminal Code
. He was a high school
    teacher who used a camera pen to surreptitiously take videos of female students
    (and of one female teacher), in most of the cases, while he was conversing with
    them in school. The videos included the faces of the subjects but focused on
    their chests and cleavage area.

[2]

The Crown appeals the acquittal. There were three main issues at trial:
    1) whether the police breached the respondents s. 8 rights by conducting an
    initial cursory search of the contents of the camera pens storage device,
    without a warrant and before he was arrested, and, if so, the admissibility of
    that evidence under s. 24(2) of the
Charter
; 2) whether while they
    were in school, the students were in circumstances that give rise to a
    reasonable expectation of privacy, within the meaning of the section; and 3) whether
    the videos were done for a sexual purpose within the meaning of the section.

[3]

The trial judge found a s. 8 breach, but admitted the evidence of the
    videos recorded on the camera pen under s. 24(2). He concluded that the
    students did have a reasonable expectation of privacy in the circumstances. However,
    he found that he was not satisfied beyond a reasonable doubt that the videos
    were done for a sexual purpose.

[4]

The Crown appeals the latter finding, based on an error of law in the
    interpretation and application of the section and the application of the
    circumstantial evidence rule. In response, the respondent says there was no
    error of law, but if there was, the trial judge erred in admitting the evidence
    under s. 24(2) and in finding that the students had a reasonable expectation of
    privacy in the circumstances.

FACTS

[5]

The trial evidence consisted of an agreed statement of facts as well as
    agreed exhibits including the impugned video recordings. The trial proceeded
    following a ruling made under s. 24(2) of the
Charter
to admit into
    evidence the contents of the recordings made by the respondent with the camera
    pen.

[6]

The respondent was a teacher in good standing at a secondary school in
    London, Ontario in 2011. He taught many students and had a positive rapport
    with them.

[7]

During 2010 and 2011, he made a number of video (with audio) recordings
    of a number of female students and one female teacher. The videos were taken at
    different locations around the school including in hallways, classrooms, the
    cafeteria, staff offices and outside the school. The videos range in duration
    from six seconds to just over two and a half minutes. In a number of them, the
    respondent is having a conversation with the person he is surreptitiously
    videoing. In most, while the camera is on the girls face, the focus remains
    for an extended period of time on her chest area and cleavage.

[8]

The students were between 14 and 18 years old. It was an agreed fact
    that each student had a subjective expectation of privacy that they would not
    be surreptitiously audio and/or video recorded by the respondent. They were not
    aware that they were being recorded and did not consent to it.

[9]

The respondent did not have the schools permission to make the
    recordings. There was a school board policy in effect which prohibited the
    respondents conduct in making the recordings in the manner he did.

[10]

There
    were 24-hour surveillance security cameras in and around the school, which were
    clearly visible to everyone. There was also signage regarding the 24-hour
    surveillance.

[11]

The
    police became involved when they were called by the principal of the school on
    June 21, 2011. The day before, another teacher had reported to the principal
    that he had made frequent observations of the respondent apparently recording
    female students with his pen. Having become concerned for the safety and
    security of the students, the principal informed the superintendent who advised
    him to obtain the pen. The principal also called the teachers federation so that
    a representative could be available for the respondent.

[12]

Coincidentally,
    the principal walked by the respondent in the hallway and observed him speaking
    with a female student at a locker, while holding up a pen that emitted a red
    light from the top. He saw the respondent later in the computer lab, standing
    while speaking with a female student who was seated. Again the respondent was
    holding up the pen with the red light shining from the top. When the respondent
    saw the principal, he put the pen in his pocket. The principal asked the
    respondent to come to an empty classroom where the principal asked to see the
    pen that the respondent had been holding. At first, the respondent said it was
    in his office, but when the principal said he had just seen him put it into his
    pocket, he handed it over.

[13]

The
    principal provided the pen, which matched the description given by the other
    teacher, to the school superintendent, who provided it to the police. Before
    making an arrest or obtaining a warrant, Detective Howe reviewed three of the
    videos on the USB device in the pen. Based on that review, he obtained a
    warrant to search the pen. It contained 19 videos, two of which had been
    deleted. There were 30 different individuals on the videos, 27 of whom were
    female students at the school.

[14]

Based
    on this search, the police obtained a warrant to search the respondents home
    and computers there, which they did, but found nothing relevant to the
    investigation.

FINDINGS OF THE TRIAL JUDGE

[15]

In
    a separate pre-trial ruling, the trial judge admitted the evidence of the
    videos contained in the camera pen.

[16]

He
    determined that the respondent had a reasonable expectation of privacy in the
    contents of his camera pen and that without an arrest or exigent circumstances,
    the original warrantless search of the USB device inside the pen constituted a
    breach of s. 8 of the
Charter
. However, he found that all three
Grant
factors favoured admission of the evidence under s. 24(2): 1) the police
    conduct was not in bad faith; 2) the
Charter
breach was not serious
    because the search was not of a computer but of a camera; and 3) admission of
    the evidence was necessary to prosecute the crime and would have a negligible
    impact on the administration of justice: see
R. v. Grant
, 2009 SCC 32,
    [2009] 2 S.C.R. 353.

[17]

Once
    the evidence was admitted, the trial judge then considered whether he was
    satisfied beyond a reasonable doubt of the elements of the offence under s.
    162(1)(c) of the
Code
, which provides:

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

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

[18]

The
    trial judge found that the respondent had conceded that he surreptitiously used
    his pen camera to make recordings of female students on different occasions at
    school. The two questions to be determined were: 1) whether the recordings were
    made in circumstances that gave rise to a reasonable expectation of privacy;
    and 2) whether they were made for a sexual purpose.

[19]

The
    trial judge found that there was a reasonable expectation of privacy. However,
    on the second issue he concluded:

While a conclusion that the accused was photographing the
    students cleavage for a sexual purpose is most likely, there may be other
    inferences to be drawn that detract from the only rational[e] conclusion
    required to ground a conviction for voyeurism.

ISSUES ON APPEAL

[20]

The
    Crown appeals the acquittal under s. 676(1)(a) of the
Code
, which
    requires that the ground of appeal be on a question of law alone.

[21]

The
    Crowns appeal is based on the submission that on the facts found by the trial judge,
    the only reasonable or available conclusion was that the recordings were made
    for a sexual purpose. Therefore the trial judge erred in law by failing to
    apply the legal test for determining whether the recordings were made for a
    sexual purpose. Alternatively, the trial judge erred in his application of the
    rule in
Hodges Case
, by speculating that while a conclusion that the
    accused was photographing the student[s] cleavage for a sexual purpose is most
    likely, there may be other inferences to be drawn, without any evidence from
    which to draw any other inference.

[22]

The
    respondent submits that if the trial judge erred in law (which he refutes),
    then the acquittal should be upheld in any event on the basis of two errors
    made by the trial judge in his other findings: 1) he erred in admitting the
    evidence of the contents of the camera pen under s. 24(2) of the
Charter
;
    and 2) he erred in law in finding that the circumstances could give rise to a
    reasonable expectation of privacy.

ANALYSIS

1)

Did the
    trial judge err in law by finding that he had a reasonable doubt whether the
    videos were made for a sexual purpose?

(1)

Background of the offence

[23]

The
    voyeurism offence was enacted in 2005 to address public concerns with the rapid
    advent of technology that could be used to spy on people surreptitiously for
    sexual purposes. The Canadian government issued a 2002 consultation paper
    entitled
Voyeurism as a Criminal Offence: A Consultation Paper
, where
    the purpose behind the initiative to address these concerns was discussed and
    input sought from interested parties and groups.

[24]

In
    that paper, the government discussed the issues the legislation was intended to
    address: breaches of privacy and the sexual nature of the proposed offence. The
    paper explained the sexual concern in the following paragraph:

b) As a sexual offence

The sexual aspect of the offence arises from one or two sources
    (and in any given case, both may be operative): the
purpose
for which the observation is made (e.g.
    sexual arousal of the voyeur) or, alternatively, the
nature
of the subject observed (e.g. viewing or
    recording the victims sexual organs or the victim engaged in explicit sexual
    activity.) The policy justification for prohibiting voyeurism in this context
    is that it prevents a private citizen from sexually exploiting another private
    citizen. The sexual exploitation occurs the moment that the voyeur observes or
    records the victim, even if the victim is not aware of it. [Emphasis in
    original.]

[25]

The
    offence that was ultimately enacted provides:

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 reasonably 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 activity; or

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

[26]

The
    offence has a number of components and requirements. It can be committed in two
    ways, one by observation and the other by visual recording. Although both ways
    of committing the offence are contained in the same section, the consequences
    of recording versus just observing another person can be much more pernicious.

[27]

A
    recording can be shared with one or more other people, thereby significantly
    increasing the breach of privacy and indignity to the victim. Most seriously, a
    recording can be posted in numerous ways on the internet, including on
    pornography sites, for profit or even for blackmail. As a result, the scope of
    the harm from recording can be extreme. To criminalize this harm specifically, Parliament
    created a separate offence, found in s. 162(4), which prohibits the printing,
    publishing, and distributing of voyeuristic recordings.

[28]

To
    come within the voyeurism offence, the observation or recording must be done
    surreptitiously. Also the person who is observed or recorded must be in
    circumstances that give rise to a reasonable expectation of privacy. There are
    then three alternative elements that further delimit or define the offence. All
    three indicate that it is the sexual integrity of the victim that is intended
    to be protected.

[29]

The
    first focuses on the location of the victim: the offence occurs when the victim
    is in a place where a person can reasonably be expected to be nude, to expose
    their genitals, breasts or anal region, or be engaging in sexual activity. The
    second focuses on what the victim is doing: the offence occurs if the victim is
    nude or is engaging in sexual activity and the purpose of the perpetrator is to
    observe or record the nudity or the sexual activity.

[30]

The
    third element is not circumscribed by the victims location, his or her state
    of undress, or sexual activity. The offence is committed if the observation or
    recording is done for a sexual purpose. Of course, all these elements are
    governed by the overall requirement that the person observed or recorded must
    be in circumstances that give rise to a reasonable expectation of privacy.

(2)

The trial judges analysis

[31]

In
    his analysis of the meaning of for a sexual purpose, the trial judge referred
    to the decision of the Supreme Court of Canada in
R. v. Sharpe
,

2001
    SCC 2, [2001] 1 S.C.R. 45, where McLachlin C.J. discussed the meaning of for a
    sexual purpose in the context of s. 163, the child pornography offence. That
    offence involves, by definition, a determination of whether the dominant
    characteristic of pictures of a sexual organ or the anal region of a person
    under the age of eighteen years is for a sexual purpose. McLachlin C.J. stated,
    at para. 50, that she would interpret that phrase in the sense of reasonably
    perceived as intended to cause sexual stimulation to some viewers. As an
    example, family photos of naked children, viewed objectively, generally would
    not have the depiction of a childs sexual organ or anal region for sexual
    stimulation as their dominant purpose.

[32]

The
    trial judge then observed that the determination of whether an image or images
    are intended to cause sexual stimulation must be assessed on the totality of
    the evidence. As examples of relevant considerations, he listed nudity, sexual
    contact or sexual posing, indicia of sexual stimulation, whether the images are
    associated with sexual activities, other indicia of sexuality, whether the
    images are part of a series of sexual materials and whether they were taken
    surreptitiously. Focusing again on the decision in
Sharpe
, and the
    importance of context, he stated that most cases have as a predominant feature
    nudity, genitalia or sexual acts. He also found that sexual gratification is a
    component of for a sexual purpose. This is consistent with the interpretation
    of the same phrase in a number of other sections of the
Code
:
R. v.
    Morrisey
,
2011 ABCA 150, at para. 21 (s. 151, sexual interference);
R. v. Colley
,
2009 BCCA 289, 273 B.C.A.C. 107, at paras. 12 and
    15, leave to appeal refused, [2009] S.C.C.A. No. 358 (s. 152, invitation to
    sexual touching); and
R. v. M.B.
,
2014 QCCA 1643, at paras.
    22-24 (s. 151, sexual interference and s. 153, sexual exploitation).

[33]

Turning to the facts of this case, the trial judge noted that because
    the respondent did not testify, there was no evidence (meaning direct evidence)
    of his purpose. As a result, the case had to be determined based on the
    totality of the circumstantial evidence. He then reviewed the contents of the
    videos in detail, noting that there were five videos that were primarily
    focused on the cleavage of female students. The Crown pointed to five factors
    that demonstrated that the videos were taken for a sexual purpose:

a) The surreptitious nature of the video recordings;

b) The subject and content of the videos being only female
    students;

c) The camera generally pointing downward towards the students
    cleavage;

d) Numerous video captures, primarily focusing on the students
    breasts; and,

e) In some of the clips, the camera is set up so as to only
    capture a students breasts.

[34]

The
    trial judge effectively minimized these factors with the following six
    responses to the Crowns points:

a) The recordings were not found with other adult or child
    pornographic material;

b) Most of the clips depict the students entire face and body;

c) The pen camera is static and not manually controlled during
    the recordings;

d) There is no nudity;

e) There are no captures of undressing or explicit sexual
    activity; and,

f) The videos were all recorded surreptitiously.

[35]

The
    trial judge went on to emphasize that the camera pen could not zoom in or
    enhance its focus, and that the pictures included the faces and upper bodies of
    the female students as well as their cleavage. As examples of situations where
    a video of a clothed person could be for a sexual purpose, he listed a person
    wearing a wet bathing suit, translucent material, or overtly sexual clothing,
    such as leather or bondage gear.

[36]

He
    noted that in this case, what was recorded were at least five videos focused on
    the cleavage of three particular students of what can be readily seen from the
    naked eye without effort, and that the mischief here is that what can be seen
    has been recorded permanently on a device for possible viewing, dissemination or
    for other unknown purposes at a later time.

[37]

The
    trial judge then found:

Unlike other cases proffered by the Crown attorney, the
    students here are fully clothed and not so situated, that I am persuaded that
    the recordings, even with images that predominately display the students
    cleavage, have as their focus the students[] sexual organs. While a conclusion
    that the accused was photographing the students[] cleavage for a sexual purpose
    is most likely, there may be other inferences to be drawn that detract from the
    only rational[e] conclusion required to ground a conviction for voyeurism.

[38]

The
    trial judge concluded that while the respondents behaviour was morally
    repugnant and professionally objectionable, he was not satisfied beyond a
    reasonable doubt that the only rational conclusion is that the limited camera pen
    images of the female students cleavage or breasts were made for a sexual
    purpose.

(3)

Interpretation of the section

[39]

As
    the offence of voyeurism is just over a decade old, there are relatively few
    decisions under the section. Two were referred to by the trial judge. In one,
    the victims were clothed, but the accused was still convicted. In the other,
    the complainants were nude but the accused was acquitted.

[40]

In
    the British Columbia case of
R. v. Rudiger
, 2011 BCSC 1397, 278 C.C.C.
    (3d) 524, the accused hid in a van and videotaped small children in swimwear
    playing in a park. When the police knocked on the window of the van, the
    accused asked them to hold on as he had to put his clothes on. The police
    observed wadded tissues on the floor of the van. The appellant was charged with
    possession of child pornography and voyeurism. The trial judge found that the
    videos were made for a sexual purpose and that finding was not disputed on the
    appeal.

[41]

In
R. v. Lebenfish
, 2014 ONCJ 130, the accused was snapping pictures of
    people sunbathing naked on a nude beach on the Toronto Islands. He testified
    and explained that he had made many trips to Hanlans Point, he had an interest
    in nudity and took the pictures as a hobby for an aesthetic purpose and not a
    sexual one. He did not disseminate or post any of the pictures. The trial judge
    appeared to accept his testimony. The trial judge also found that he did not
    act surreptitiously and there was no reasonable expectation of privacy.

[42]

Other
    decisions to which the trial judge was referred involved charges of child
    pornography. Many, if not most of these cases involved pictures of naked
    children. However, that is not a requirement.
Rudiger
was an example
    of a case where the children were wearing bathing suits but the focus was on
    their genital regions, which is a requirement of the child pornography offence.

[43]

The
    trial judge put significant emphasis on the lack of nudity or sexualized
    clothing in his analysis of whether these videos were taken for a sexual
    purpose. In my view, a contextual analysis of the voyeurism offence demonstrates
    that that was an error. As discussed above, there are three different
    circumstances that can constitute the offence. Two of them specifically involve
    nudity or engaging in sexual activity. One is where the observation or video is
    made of a person who is in a place where the person can be expected to be nude.
    The second is where the person is nude.

[44]

The
    third circumstance is where the observation or video is made for a sexual
    purpose. If that third circumstance also required nudity as a component, it
    would be redundant. Therefore, while nudity may certainly be relevant to an
    analysis of the sexual purpose of the video, the fact that the person is
    clothed cannot be a factor that negatives that purpose. If the person were nude,
    the charge could be laid under paragraph (1)(b) . Because observing or visually
    recording for a sexual purpose is a separate offence, it is clear that it can
    be committed where the victims are not naked, but where the focus of the
    observation or videos is on sexual organs or where there are other indicia that
    the intent of the accused is for a sexual purpose.

[45]

In
    this case, as the trial judge correctly stated, because the respondent did not
    testify, whether the videos were made for a sexual purpose had to be determined
    based on all of the circumstances. As he also correctly observed, applying the
    test from
Sharpe
, whether the image would be reasonably perceived as
    intended to cause sexual stimulation is based on the image and must be assessed
    on the totality of the evidence.

[46]

The
    respondent took advantage of his position as a teacher to make surreptitious
    videos of his teenaged female students. At least five of the videos focused on
    the cleavage of those female students. He was taking close up, lengthy views of
    their cleavage from angles both straight on and from above. The trial judge
    found that while it was most likely that the respondent was photographing
    female students cleavage for a sexual purpose, there may be other inferences.
    However, he failed to identify any such inference anywhere in his reasons. With
    respect to the trial judge, there were no other inferences available on this
    record.

[47]

As
    the trial judge stated, this conduct by the respondent was morally repugnant. That
    finding is inconsistent with the trial judges conclusion that the videos might
    not have been taken for a sexual purpose. The reason the teachers conduct was
    morally repugnant was because of the sexual impropriety of taking surreptitious
    pictures of the breasts of his female students. Had he been taking
    surreptitious pictures of only their faces, his conduct would have been
    unacceptable as a breach of the teacher-student trust relationship, but not
    morally repugnant because of sexual impropriety.

[48]

The
    Crown submits that the trial judge erred in his application of the rule
    regarding circumstantial evidence, the old rule in
Hodges Case
that
    requires a verdict of guilt based on circumstantial evidence to be the only
    rational or reasonable conclusion. I agree.

[49]

That rule was most recently discussed by the Supreme Court of
    Canada in
R. v. Villaroman
,
2016 SCC 33, [2016] 1 S.C.R. 1000.
    In that case, the trial judge had convicted the accused of possession of child
    pornography found on his computer. The issue was whether he had knowledge and
    possession of the impugned images. The Alberta Court of Appeal set aside the
    verdict on the basis that there were gaps in the evidence that should have
    raised a reasonable doubt.

[50]

The Supreme Court allowed the appeal. It held that the trial
    judges conclusion of guilt was reasonable based on the record as a whole and
    that the Court of Appeal erred in its analysis by elevating gaps in the
    evidence to speculative possibilities that did not raise a reasonable doubt.

[51]

Respondents
    counsel also suggested in argument the hypothetical that the respondents
    purpose may have been to innocently test out his camera pen because he had an
    interest in the technology. The trial judge did not take up that suggestion in
    his reasons.

[52]

In
Villaroman
,
dealing with suggested hypotheticals, the court
    stated, at para. 50:

When dealing with the defence position, the
    judge correctly stated the law, in my opinion. The judge properly noted that
    the accused cannot ask this Court to rely on supposition or conjecture, that
    flows from a purely hypothetical narrative to conclude that the Crown has not
    proven he is guilty of the offences with which the Crown has charged him:
    para. 47. The judges citation of
McIver
was intended to make the same
    point, i.e. that a reasonable doubt cannot arise from speculation or
    conjecture. This is perfectly correct. As the Court said in
Lifchus
, a
    reasonable doubt must not be imaginary or frivolous; need not be proof to an
    absolute certainty; and must be based on reason and common sense: paras. 31
    and 36. The burden on the Crown does not extend to negativing every
    conjecture:
R. v. Paul
, [1977] 1 S.C.R. 181, at p. 191.

[53]

This
    was an overwhelming case of videos focused on young womens breasts and
    cleavage. The trial judge made two errors of law in his analysis. First, he
    erred by suggesting in his interpretation of the sexual purpose provision that,
    taken on its own, the lack of nudity or sexually suggestive clothing or poses
    could derogate from the sexual purpose of the videos that were focused on
    breasts and cleavage. Subsection (b) of the offence of voyeurism specifically
    makes it an offence to surreptitiously observe or visually record a person who
    is nude. Subsection (c) requires only that the observation or recording be
    done for a sexual purpose.

[54]

Second,
    he did not identify any reasonable inference other than that the purpose of the
    videos was sexual. In

R. v. Taylor
, 2015 ONCJ 449, the accused
    took pictures of womens buttocks while they were sunbathing in thong bathing
    suits on a beach. When considering the sexual purpose component of the offence
    of voyeurism, the trial judge concluded that he could not discount the
    possibility that the pictures were taken for aesthetic reasons as some artists
    do. In this case, one would have to speculate to find any such inference
    arising from the evidence or lack of evidence on this record.

[55]

I
    would therefore allow the Crown appeal on the ground it raised. However, I am
    required to turn to the two issues properly raised by the respondent, regarding
    errors he submits the trial judge made and which, if decided in his favour,
    would lead to the dismissal of the appeal.

2)

Did the
    trial judge err in his decision to admit the evidence resulting from the
    initial warrantless search of the camera pen under s. 24(2) of the
Charter
?

(1)

The initial warrantless search

[56]

In
    his ruling on the s. 8
Charter
claim, the trial judge reviewed in
    detail the evidence surrounding the search of the pen. Officer Campbell first
    obtained the pen from the superintendent who had been called by the principal.
    Officer Campbell attended at the school and was fully briefed by the
    superintendent of everything that had occurred there. She then received the pen
    on the understanding that the school board wanted to know if the pen contained
    evidence of criminal activity. She consulted with Detective Howe, who suggested
    that she ask the respondent for an explanation as to what photos, if any, were
    on the camera pen. The respondent refused to talk to her on the advice of his
    lawyer. Detective Howe then instructed Officer Campbell to give the pen to
    Chris Lipscombe, a computer forensic analyst with the London Police Service.

[57]

Detective
    Howe had determined that the pen had been legitimately obtained by the police
    from the school staff and that the respondent had turned it over to the school
    staff voluntarily.

[58]

He
    believed there may have been surreptitious videoing of students, but knew that
    would only be an offence if the recordings had been made for a sexual purpose.
    Further, he believed that his investigation was at a stand-still until he knew
    more about what images were on the camera. He did no investigation at all. He
    also believed he did not have grounds to either arrest the respondent or to
    obtain a search warrant, and that the only way he could investigate was to preview
    the contents of the camera pen without a warrant.

[59]

He
    testified at the preliminary inquiry that he believed he could conduct a
    cursory search without a warrant in this case, based on the case of
R. v. Polius
(2009)
, 196 C.R.R. (2d) 288 (Ont. S.C.),
    which held that a cursory search of a cell phone
incident to arrest
was permissible. Both he and Mr. Lipscombe testified at the preliminary inquiry
    that they had conducted these types of warrantless cursory searches on
    multiple occasions.

[60]

Mr.
    Lipscombes examination revealed a USB drive inside the pen. He did a cursory
    search which revealed several active video files. He and Detective Howe viewed
    three of them. The first was of an empty classroom. The second showed the
    camera panning several times from the face to the breasts of an adult female that
    appeared to be in a lunch room. The third showed the camera again panning
    several times from the face to the breasts, but of a 14 or 15 year old girl in
    a classroom.

[61]

Based
    on this examination, Detective Howe obtained a warrant to search the entire
    contents of the pen camera. Following that search, he had reasonable and
    probable grounds to arrest the respondent for voyeurism. He also obtained a
    warrant to search the respondents home including his computers there, but nothing
    was found.

(2)

The trial judges analysis

[62]

Based
    on these findings, the trial judge then addressed the s. 8 issue in two stages.
    The first was whether the police were entitled to search the camera pen at all
    without a warrant. Following an extensive canvass of the relevant
    jurisprudence, including the cases of
R. v. Cole
, 2012 SCC 53, [2012]
    3 S.C.R. 34;
Polius
;
R. v. Manley
, 2011 ONCA 128, 269 C.C.C.
    (3d) 40;
R. v. B.-H.
,
2013 ONSC 1183; and
R. v. Rafferty
,
2012 ONSC 703, he concluded: 1) the respondent had a limited expectation of
    privacy in the camera pen USB device; and 2) there was no basis in law for the
    police to conduct any kind of warrantless search of the device when the search
    was not incident to arrest. The initial, cursory search of the camera pen
    therefore constituted a breach of the respondents s. 8 right. That finding is
    not challenged by the Crown on this appeal.

[63]

The
    second stage was whether the evidence could be admitted under s. 24(2) of the
Charter
,
    applying the
Grant
factors: the seriousness of the
Charter
infringing conduct; the impact of the
Charter
violation on the
Charter
-protected
    interest of the respondent; and societys interest in the adjudication of the
    case on its merits.

[64]

On
    the first factor, the seriousness of the
Charter
-infringing conduct,
    the trial judge found that the jurisprudence surrounding the issue of preview
    searches of computer-type devices, whether or not incident to arrest, was somewhat
    conflicting at the time of the police conduct in this case, referring to such
    cases as
Polius
;

R.
    v. Fearon
,
2010 ONCJ 645, affd 2013 ONCA 106, affd 2014 SCC 77,
    [2014] 3 S.C.R. 621;

R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R.
    253; and
Cole
. He therefore concluded that Detective Howes decision
    to preview search the camera without grounds to arrest and without a warrant was
    not egregious or in bad faith. Similarly, he concluded that the fact that these
    types of searches were done somewhat routinely by the London police force constituted
    a reasonable misunderstanding of the law. He further found that, despite the
    evidence of Mr. Lipscombe that the USB device was a full storage device that
    could contain all of the information that could be stored on a computer, the
    fact that the pen was only used as a camera meant that the respondent had a
    limited expectation of privacy in its contents. On the first factor, therefore,
    he concluded that admitting the evidence would not send a message of
    condonation of police misconduct and that it favoured admission of the
    evidence.

[65]

Dealing
    with the second factor, the impact on the
Charter
-protected interest
    of the respondent, in concluding that the violation was not very serious, the
    trial judge likened the camera pen to a contraband item (for example, a bag of
    illegal drugs or a weapon) seized by the employer, as opposed to a computer or password-protected
    electronic device. He noted that any subjective expectation of privacy by the
    respondent in the camera pen may be deemed objectively unreasonable. He also referred
    to the discoverability of the contents with a warrant as a factor that
    minimized the impact of the breach on the respondent, although he accepted
    Detective Howes concession that he did not have the grounds to obtain a
    warrant. His conclusion on the second
Grant
factor was that it also
    favoured admission.

[66]

The
    third factor also favoured admission, as the evidence was probative, it existed
    independently of the breach, and was necessary for an important prosecution.

[67]

Weighing
    all of the factors in the balancing process mandated by
R. v. Harrison
,
    2009 SCC 34, [2009] 2 S.C.R. 494, at para. 36, the trial judge found that the
    repute of the administration of justice would not be better served by exclusion
    of the evidence.

(3)

Analysis of
Charter
ground

[68]

The
    respondent submits that although deference is to be accorded to a trial judges
    decision to admit or exclude evidence under s. 24(2) of the
Charter
,
    in the course of his analysis, the trial judge ignored or mischaracterized
    evidence thereby leading to errors in his application of the
Grant
test.

[69]

He
    focuses on five alleged errors: 1) failing to give sufficient legal effect to
    the admission by the police that they had no reasonable grounds for arrest or
    for a warrant, and used that lack of evidence as a basis for the illegal
    cursory search; 2) relying on the law regarding searches incident to arrest,
    when it had no application in this case; 3) erroneously rejecting the expert
    evidence that the pen cameras USB device could contain the same core
    biographical information as a computer; 4) ignoring the fact that the original
    warrantless search led to a warrant to conduct a much more intrusive search of
    the respondents home and computers; and 5) finding that the police actions
    were not deliberate when they did no investigation and relied on their routine
    practice of conducting cursory searches without a warrant.

[70]

These
    grounds have to be assessed within the parameters of the three
Grant
factors. The submission is that the trial judge improperly minimized the
    seriousness of the conduct of the police as well as the effect on the
    respondent.

[71]

I
    agree with the respondent that the trial judge erred when he found that there
    was conflicting jurisprudence regarding the ability of the police to search a
    device without a warrant and not as an incident to arrest. In fact, the law was
    and is clear that subject to the existence of exigent circumstances, the police
    may not search a computer-like device without a warrant when it is not incident
    to arrest. This courts decision in
Cole
, which held that the police
    could not search without a warrant a school-board owned computer that was
    assigned to a specific teacher because the teacher had a reasonable expectation
    of privacy in the contents of the computer, was released in March 2011, over two
    months before the arrest of the respondent. And of course, there are also limits
    on a search that can be conducted incident to arrest: see
Cole
;
Manley
;
Polius
;
and

R. v. Aviles
, 2017 ONCA 629.

[72]

As
    there was no conflicting jurisprudence, the trial judges characterization of Detective
    Howes understanding of the law and his basis for conducting the cursory search
    were without foundation. Detective Howe testified that he was relying on the
    case of
Polius
, which involved the search of a cell-phone incident to
    arrest. However, he knew that he had no reasonable and probable grounds for
    arrest, or for a warrant. Any search he were to conduct would not be incident
    to arrest. And he believed he could go no further in the investigation without
    searching the camera to see the nature of the photographs.

[73]

These
    circumstances can be compared with those in
Cole
, where the Supreme
    Court found that at the time of the police search of the teachers school-board
    owned computer, the law governing an employees privacy interest in a work
    computer remained unsettled. In that case, the police officer believed he could
    search the computer without a warrant. The Supreme Court found his belief to be
    erroneous but understandable. In this case, Detective Howe did not believe he
    could search the camera pen without a warrant but proceeded to do so
    regardless.

[74]

In
    my view, based on this evidence, the trial judge had no basis to find that the
    police acted in good faith by conducting their initial search of the camera.
    The police service in London had developed its own process of preliminary
    cursory searches for the sole purpose of obtaining evidence that could form the
    basis to seek judicial authorization for a search warrant or to make an arrest.
    This was a clear violation of s. 8 of the
Charter
. The first
Grant
factor clearly favours exclusion of the evidence.

[75]

As
    the Supreme Court explained in
Grant
at para. 76, the second factor:

[C]alls for an evaluation of the extent to which the breach actually
    undermined the interests protected by the right infringed. The more serious
    the impact on the accuseds protected interests, the greater the risk that
    admission of the evidence may signal to the public that
Charter
rights,
    however high-sounding, are of little actual avail to the citizen, breeding
    public cynicism and bringing the administration of justice into disrepute.

[76]

As
    examples of serious infringements, the court pointed to statements obtained in
    breach of the s. 7 right to silence, or where the search intrudes on an area
    in which the individual reasonably enjoys a high expectation of privacy, or
    that demeans his or her dignity: paras. 77-78.

[77]

In
    this case, the respondent had a diminished expectation of privacy in his camera
    pen for three reasons. First, he was using it at school, where the
    administration had supervisory jurisdiction over him and had the authority to
    seize and search its contents when he was caught taking pictures of the
    students. Second, many of the privacy concerns related to search history or
    communication were not present in this device. Although the USB storage in the
    camera was capable of storing personal information if such information had been
    transferred onto it, the device was not connected to the internet nor could it
    send or receive email or other communication. Third, the storage device did not
    in fact contain any personal information, but only the impugned videos of other
    people, in which the respondent had no privacy interest: see
Cole
,
at para. 27. On the other hand, based
    on the initial search, the police obtained a warrant to search the respondents
    home, which was much more intrusive of his privacy.

[78]

There
    is also a somewhat confused issue regarding whether the police could have
    obtained a warrant and its significance. Detective Howe was satisfied that he
    could not obtain a search warrant and the trial judge appeared to accept that
    view. However, had the officer conducted an investigation by interviewing the
    other teacher who observed the respondent apparently photographing female
    students surreptitiously, or had the school authorities viewed the camera
    videos and advised the police of their contents, there would have been evidence
    upon which to seek and obtain a warrant.

[79]

Under
    the first
Grant

factor this fact could serve to undermine the
    good faith of police if they were cavalier about not obtaining a warrant: see
R.
    v. Buhay
, 2003 SCC 30, [2003] 1 S.C.R. 631, at paras. 63-64. When
    assessing the second
Grant

factor it is a consideration that
    may militate against the seriousness of the actual intrusion: see
Cole
,
    at para.93.

[80]

Given
    the significantly diminished expectation of privacy in the contents of the
    camera pen, both because of the contents themselves and the circumstances when
    the videos were taken, the second
Grant

factor favours
    admission of the evidence.

[81]

The
    respondent submits that although the evidence was critical to the prosecution,
    and existed independently of the s. 8 breach, this offence falls at the less
    serious end of the spectrum because it is merely voyeurism and the students in
    the videos were fully clothed. He therefore argues that the third factor does
    not favour admission of the evidence. I would reject this submission. This
    offence involved multiple breaches of trust by a high school teacher, which heightens
    the public interest in its prosecution. In my view, the third
Grant
factor also favours admission of the evidence.

[82]

The
    balancing exercise in this case weighs the seriousness of the breach on the
    part of the police, against the significantly reduced expectation of privacy in
    the contents of the camera pen, being surreptitious videos taken by a teacher
    of his students in class. The third factor, as it often does, tips the balance
    in favour of admission.

[83]

Given
    the significantly reduced expectation of privacy in the camera contents, on
    balance, I am not satisfied that the admission of the evidence would bring the
    administration of justice into disrepute. I would therefore not give effect to
    this argument by the respondent as to why a new trial should not be ordered.

3)

Did the
    trial judge err in finding that the videos were taken in circumstances that
    gave rise to a reasonable expectation of privacy?

(1)

A component of the offence

[84]

It
    will be recalled that s. 162(1) makes it an offence to either observe or to
    make a video of a person, surreptitiously, where the person is in
    circumstances that give rise to a reasonable expectation of privacy in one of
    three situations: (a) the person is in a place where nudity or sexual activity
    are expected; (b) the person is nude or in the course of sexual activity; or
    (c) the purpose of the observation or of making the video is sexual.

[85]

The
    concept of a reasonable expectation of privacy has been given extensive and
    ongoing judicial consideration in the context of a persons
Charter
right to privacy from intrusion by the state, in particular under ss. 8 and 7
    of the
Charter
.
[1]
In that context, the right to privacy is the right to exclude the state,
    without prior judicial authorization, from ones home or other places under
    ones control, or from ones person, with the purpose of protecting personal dignity
    and personal information.

[86]

In
    the context of this offence, the protection is not from the state but from
    other people. There is no issue of prior judicial authorization. And it is not
    concerned with protecting the privacy of personal information, whether of an
    accused or of a complainant. It is applicable solely to a complainants privacy
    interest in not having their body viewed or video-recorded in a sexual context.
    The question is, in what circumstances does that privacy interest arise?

[87]

Every
    person is entitled to expect to be able to protect their personal sexual
    integrity and dignity from non-consensual visual intrusion by other people.
    While the offence of voyeurism in s. 162 is intended to provide that
    protection, Parliament has imposed a number of limitations on its application.

[88]

First,
    the observation or videoing of another person is only an offence if it is done
    surreptitiously. It is not an offence to openly stare at another person or
    video them in one of the three prohibited situations. Arguably, this limitation
    recognizes and acknowledges that a person can consent to or acquiesce in being
    stared at or videoed, if the person is aware that it is happening. Similarly,
    when a person is aware that they are being observed or recorded, they can
    object, say no, turn away, leave, or take other steps to protect themselves
    from such an intrusion if it is unwanted.

[89]

Second,
    the offence is limited to the three circumstances that constitute it. They all
    involve the visual protection of the persons sexual integrity. Therefore, it
    is not an offence to surreptitiously make a video of another person where their
    sexual integrity is not being compromised.

[90]

The
    third limitation is that the person who is surreptitiously observed or visually
    recorded must be in circumstances that give rise to a reasonable expectation of
    privacy. Where the observation or videoing is done in circumstances where the
    person being secretly stared at or videoed does not have a reasonable
    expectation of privacy, the conduct by the perpetrator is not an offence.

[91]

In
    my view, this limitation recognizes that we live in an open society where
    visual interaction is part of everyday life and is valued. Today, most people
    have cameras and many take pictures and videos as part of day-to-day life. They
    also post pictures on the internet to widely disseminate events that are
    occurring. And of course, freedom of the press includes making visual
    recordings as part of the news reporting process. By limiting the offence of
    voyeurism to circumstances where a person has a reasonable expectation of
    privacy, Parliament is acknowledging a limit on the ability of the state to
    completely protect visual sexual integrity in our open society.

(2)

Definition of Privacy

[92]

Although
    no one wants their sexual integrity compromised or abused by surreptitious
    observation or videoing, whether the videos are taken in a public gathering or
    in a private setting, Parliament limited the applicability of the offence of
    voyeurism to circumstances where the person being surreptitiously observed or
    visually recorded has a reasonable expectation of privacy.

[93]

The
    dictionary definition of privacy from the Oxford English Dictionary is: a
    state in which one is not observed or disturbed by other people; the state of
    being free from public attention.

[94]

This
    definition appears to focus on a persons location as the governing factor for
    their reasonable expectation of privacy. This, I would suggest, is the common
    and typical understanding of the concept. A person expects privacy in places
    where the person can exclude others, such as ones home or office, or a
    washroom. It is a place where a person feels confident that they are not being
    observed.

[95]

However,
    as part of the reasonable expectation of privacy requirement of the offence,
    Parliament included the concept of circumstances that give rise to that
    expectation. Arguably, there will be circumstances where it is possible to have
    a limited reasonable expectation of privacy in a public place.

[96]

One
    example may be if the privacy expectation is limited to areas of the body that
    are covered or hidden. An offence that has become more common and required
    specific legislation in a number of U.S. states is referred to as upskirting:
    one way it is done is a person drops something at the feet of a woman wearing a
    skirt, then bends down to pick it up, and takes a picture of her underneath her
    skirt.
[2]
Often these pictures are then posted online. In my view, that would be a
    circumstance where a woman in a public place had a reasonable expectation of
    privacy that no one would look under her skirt.

[97]

The
    issue of whether there are circumstances where a person can have a reasonable
    expectation of privacy in a public place, that is, a place that is open to the
    public or a segment of the public, and where the person knows they are not
    alone has had only limited judicial consideration. It was one of the issues
    faced in two cases referred to by the trial judge,
Rudiger
and
Lebenfish
,
    with differing results.

[98]

In
Rudiger
, the accused was positioned in a van, using a video camera
    that zoomed in to view and record very young children playing in a park,
    focusing in on their genital and buttocks regions. The court concluded that the
    childrens caregivers had a reasonable expectation of privacy from such
    enhanced observation and recording, even though they were in an open park. In
Lebenfish
,
    the complainant was sunbathing nude at Hanlans Point, a nude beach on the
    Toronto Islands. The court held that she did not have a reasonable expectation
    of privacy, taking into account a number of factors including that the beach
    was public with clothing optional.

(3)

The trial judges finding

[99]

The
    trial judge found that the students who were surreptitiously videoed by the
    respondent with his camera pen had a reasonable expectation of privacy within
    the school. His conclusion is contained in the following paragraphs:

There is no dispute that the female students had a subjective
    expectation of privacy. Although instances may exist at school where students
    do not have a reasonable expectation of privacy, for example, being
    inadvertently recorded by security cameras, photographed in the background of a
    picture, or incidentally recorded in another fleeting or transitory manner, in
    the circumstances of this case, in my opinion, the students had a reasonable
    expectation of privacy.

Each subject in question was in a classroom or outside of the
    school, with the actual or imputed knowledge that there are security cameras in
    the school at various locations. While the individuals expectation is
    certainly lower and different than if they were in their own private home,
    nevertheless there still remains a reasonable expectation of privacy and it can
    be violated.

Here, the recordings are of diverse and somewhat prolonged
    duration in circumstances where the students spatial integrity in or about the
    school was impacted in a most surreptitious manner. All this gives rise to an
    expectation of privacy by the students. I find that the female students had an
    expectation of privacy that was, in fact, reasonable. The Crown has proven this
    essential element.

[100]

The respondent
    submits on this appeal that this analysis does not bear scrutiny and that the
    trial judge erred in his interpretation and application of the statutory
    requirement that the conduct take place in circumstances that give rise to a
    reasonable expectation of privacy.

[101]

He argues that
    the trial judge conflated two separate requirements of the offence, the
    surreptitious requirement with the privacy expectation requirement. The trial
    judge interpreted the privacy expectation in the context of the expectation not
    to be surreptitiously recorded. In his analysis, the trial judge stated:

One can conceive of situations or examples where a person,
    sitting in a classroom has her privacy interests interfered with. Such an individual,
    a student in the case, sitting in class, or dialoguing with a teacher or
    classmates does not reasonably anticipate that someone with a hidden camera,
    may record the interaction.

[102]

Similarly, in
    the agreed statement of facts the subjective privacy expectation of the
    students is described as follows:

Mr. Jarvis never obtained the consent of any of the students to
    video and/or audio record them. Each student had a subjective expectation of
    privacy that they would not be surreptitiously audio and/or video recorded by
    Mr. Jarvis.

(4)

Analysis

[103]

Both the trial
    judge and the parties describe the expectation of privacy as an expectation
    that the teacher would not breach their relationship of trust by
    surreptitiously recording them without their consent. I agree with the
    respondent that this articulation conflates the two concepts of privacy and surreptitious
    recording, which are two separate requirements of the offence. It also relates
    them to the concept of lack of consent, which is not a specific requirement of the
    offence, but which is captured by the fact that the observation or video must
    be done surreptitiously.

[104]

It is clear that
    students expect a school to be a protected, safe environment. It should be a
    place where their physical safety, as well as their personal and sexual
    integrity is protected. However, the areas of the school where students
    congregate and where classes are conducted are not areas where people have any
    expectation that they will not be observed or watched. While access to school
    property is often restricted, access is granted to students, teachers, other
    staff, and designated visitors. Those who are granted access are not prohibited
    from looking at anyone in the public areas. Here there were security cameras in
    many locations inside and outside the school. No one believed they were not
    being observed and recorded.

[105]

Clearly,
    students expect that a teacher will not secretly observe or record them for a
    sexual purpose at school. However, that expectation arises from the nature of
    the required relationship between students and teachers, not from an
    expectation of privacy. The expectation would also prevail, I would suggest, if
    a student met a teacher at a mall.

[106]

While it may
    have been open to Parliament to draft the offence of voyeurism more broadly, so
    that all surreptitious (non-consensual) observing and/or recording of a person
    who is within the circumstances listed in subsections (a), (b) and (c) is
    covered by this criminal offence, Parliament specifically included the
    additional requirement of circumstances that give rise to a reasonable
    expectation of privacy.

[107]

It is a trite
    rule of statutory interpretation that every word in the statute must be given a
    meaning: see Ruth Sullivan,
Statutory Interpretation
,
2d ed.
    (Toronto, Ont.: Irwin Law Inc., 2007). Therefore, the words in circumstances
    that give rise to a reasonable expectation of privacy must add something to
    the offence.

[108]

In my view, as a matter of statutory interpretation, for the
    purpose of s. 162(1)(c), in order to give the requirement of circumstances
    that give rise to a reasonable expectation of privacy any effect where the
    person being surreptitiously videoed is not naked or doing a private sexual or
    toileting act, the person must be in circumstances, including type of place,
    where they expect privacy. If the fact that they are being surreptitiously recorded
    without their consent for a sexual purpose were enough to give rise to a
    reasonable expectation of privacy, that would make the privacy requirement
    redundant. If a person is in a public place, fully clothed and not engaged in
    toileting or sexual activity, they will normally not be in circumstances that
    give rise to a reasonable expectation of privacy.

CONCLUSION

[109]

The respondent breached his relationship of trust with his students
    by surreptitiously videoing them for a sexual purpose. However, as discussed
    above, in order for the surreptitious video recording of students for a sexual
    purpose to be criminal conduct within the offence of voyeurism, the Crown had
    to prove that the students were in circumstances that gave rise to a reasonable
    expectation of privacy.

[110]

I
    conclude that the trial judge erred in law by finding that the students were in
    circumstances that gave rise to a reasonable expectation of privacy, within the
    meaning of s. 162 of the
Code
, while engaging in normal school
    activities and interactions in the public areas of the school where there were
    many other students and teachers.

RESULT

[111]

Although I
    conclude that the trial judge erred in his finding that the videos were not
    made for a sexual purpose, and therefore would allow the Crown appeal on that
    basis, I would dismiss the appeal because the Crown failed to prove the other
    component of the offence, that it occurred in circumstances which gave rise to
    a reasonable expectation of privacy.

K. Feldman
    J.A.

I agree.
    David Watt J.A.

Huscroft J.A. (Dissenting):

[112]

I agree with my colleagues that the trial judge erred in finding
    that the visual recordings were not made for a sexual purpose. I also agree
    that the trial judge did not err in admitting the evidence under s. 24(2) of
    the
Charter
.

[113]

However, with respect, I do not agree that the trial judge erred in
    concluding that the visual recordings were made in circumstances that give rise
    to a reasonable expectation of privacy.

[114]

I begin with some general observations about the nature of privacy.
    I will then outline my concerns with the majoritys conception of the
    reasonable expectation of privacy in s. 162(1) of the
Criminal Code
, before outlining my
    conception and applying it to the circumstances of this case.

Privacy and the reasonable expectation of
    privacy

[115]

The importance of privacy is, as a matter of general principle,
    uncontroversial. Everyone values privacy  at least as far as their own affairs
    are concerned  and especially against state intrusion.

[116]

But there is no consensus as to what respect for privacy requires
    no consensus as to what a commitment to its protection entails. Technological
    developments challenge our ability to protect privacy: much that was once private
    because it was inaccessible is now easily accessible and capable of being
    shared widely. How are we to understand the reasonable expectation of privacy
    in these circumstances?

[117]

The key point is that whether a person has a reasonable expectation
    of privacy is a normative or evaluative question rather than a descriptive or
    predictive one. It is concerned with identifying a persons legitimate
    interests and determining whether they should be given priority over competing
    interests. To say that a person has a reasonable expectation of privacy in some
    set of circumstances is to conclude that his or her interest in privacy
should
be prioritized over other
    interests. It is not a matter of describing or predicting what the individuals
    actual expectations are or would be.

[118]

We often speak of privacy in terms of rights, but it is misleading
    to speak in terms of the
Charter
right to privacy, as the majority decision does. The
Charter
does not include a freestanding
    right to privacy, nor has the Supreme Court of Canada recognized such a right
    in the course of interpreting the
Charter
. The
Charter
does not govern private relationships and has no application in the
    context of this case in any event. No question as to the constitutionality of
    the voyeurism offence is before the court on this appeal.

[119]

The absence of a
Charter
right to privacy does not mean that privacy  and in particular,
    the reasonable expectation of privacy  has no constitutional significance. On
    the contrary, the concept is of central importance to the specification of the
    freedom from unreasonable search and seizure under s. 8; it is the organizing
    principle that guides the construction of the freedom from unreasonable search
    and seizure in order to resolve disputes in particular contexts: see Lawrence
    B. Solum, The Interpretation-Construction Distinction (2010) 27 Const.
    Commentary 95.

[120]

The reasonable expectation of privacy performs a fundamentally
    different role in the context of the voyeurism offence with which we are
    concerned in this case, as I explain below.

The reasonable expectation of privacy in s.
    162(1)

[121]

Section 162(1) makes it an offence for anyone to surreptitiously
    observe or visually record a person who is in circumstances that give rise to a
    reasonable expectation of privacy, in three specific contexts:

a)

the person is in a
    place in which a person can reasonably 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
    activity; or

c)

the observation or
    recording is done for a sexual purpose.

[122]

How is this offence to be interpreted?

[123]

The starting point is that the purpose of statutory interpretation
    is to determine the legislatures intended meaning. Parliament can be taken to
    have made a reasoned choice for the common good, and the role of the court is
    to understand that choice: Richard Ekins,
The
    Nature of Legislative Intent
,
(Oxford: Oxford University Press, 2012) at

pp. 246-47.

[124]

The majoritys approach to interpreting s. 162(1) focuses on the
    term privacy and one meaning of the term set out in the Oxford English Dictionary.
    This definition leads the majority to tie the protection of privacy to the
    location in which a privacy claim is asserted, as well as the ability to
    exclude others from that location. The difficulty with this approach is
    apparent from the examples the majority gives: a home, an office, and a
    washroom, all places where a person feels confident that they are not being
    observed. These examples are both under- and overinclusive when considered in
    terms of the choice Parliament has made  the good that s. 162(1) is intended
    to protect.

[125]

They are underinclusive because it is possible to conceive of claims
    to privacy that are entitled to protection
at
    least to some extent

 in a variety of public places. For example, a woman breastfeeding
    an infant at a shopping mall or a workplace may have an attenuated expectation
    of privacy. She cannot expect not to be viewed while in a public place. But it
    does not follow that she has no reasonable expectation of privacy whatsoever.
    Privacy expectations need not be understood in an all-or-nothing fashion. In my
    view, there is a reasonable expectation that she will not be visually recorded
    surreptitiously for a sexual purpose. She has a reasonable expectation of
    privacy at least to this extent.

[126]

At the same time, the majoritys examples are overinclusive. It is
    possible to conceive of circumstances in which a person could have no
    reasonable expectation of privacy, or perhaps a diminished expectation of
    privacy despite being in a private or non-public place. For example, a person
    who stands in front of an open window may have a diminished expectation of
    privacy, at least for some purposes, regardless of whether he or she is at home
    or in his or her office.

[127]

The majority acknowledges the possibility that a limited reasonable
    expectation of privacy in a public place may exist in some circumstances. But
    on the majoritys approach, privacy in public places  which the majority
    defines as a place that is open to the public or a segment of the public, and
    where the person knows they are not alone  is likely so exceptional as to be
    rare. That is apparent from the upskirting example the majority provides. In
    my view, a privacy expectation limited to areas of the body that are covered or
    hidden from view when a person is in public is the
very least
that can
    reasonably be expected.

[128]

In short, a location-based approach to privacy protection is
    problematic. Location is a relevant consideration in determining whether, in
    the language of s. 162(1), a person is in circumstances that give rise to a
    reasonable expectation of privacy, but it is not determinative.

The high school students had a reasonable
    expectation of privacy in this case

[129]

The majority considers that the trial judge conflated two separate
    elements of the offence, the surreptitious requirement and the reasonable
    expectation of privacy, and wrongly related them to the concept of a lack of
    consent. Although the majority accepts that students expect that their personal
    and sexual integrity would be protected at the school, the majority asserts at
    paras. 104-105 that students had no reasonable expectation that they would not
    be watched in areas of the school in which they congregate and where classes
    are held:

While access to school property is often
    restricted, access is granted to students, teachers, other staff, and
    designated visitors. Those who are granted access are not prohibited from
    looking at anyone in the public areas. Here there were security cameras in many
    locations inside and outside the school. No one believed they were not being
    observed and recorded.

Clearly, students expect that a teacher will
    not secretly observe or record them for a sexual purpose at school. However,
    that expectation arises from the nature of the required relationship between
    students and teachers, not from an expectation of privacy.

[130]

According to the majority, people must be in circumstances,
    including type of place, where they expect privacy, and the students were not.

[131]

I see things differently. This case presents a straightforward question:
    should high school students expect that their personal and sexual integrity
    will be protected while they are at school? The considerations relevant to
    answering that question include the following:

·

students are required to attend school for an
    educational purpose;

·

schools are not public places open to all;
    access to them is controlled by school authorities;

·

the high schools hallways and grounds are under
    24-hour video surveillance, but the surveillance does not focus on particular
    students or their body parts;

·

access to surveillance video recordings for
    personal use is not permitted; and

·

school board policy prohibited the appellant
    from making the type of visual recordings that he made.

[132]

The majority concludes that a person in a public place, fully clothed
    and not engaged in toileting or sexual activity  will normally not be in
    circumstances that give rise to a reasonable expectation of privacy. I think
    that this is an unduly narrow conclusion. It undermines the good that s. 162(1)
    is intended to protect. It assumes that if complete privacy is not possible,
    one cannot have a reasonable expectation of privacy even to a limited extent.

[133]

No doubt, students will be seen by other students, school employees
    and officials while they are at school. But this does not mean that they have
    no reasonable expectation of privacy. In my view, the students

interest
    in privacy is entitled to priority over the interests of anyone who would seek
    to compromise their personal and sexual integrity while they are at school.
    They have a reasonable expectation of privacy at least to this extent, and that
    is sufficient to resolve this case.

[134]

I do not accept the majoritys suggestion that surreptitious
    recording for a sexual purpose is irrelevant in determining whether a person is
    in circumstances that give rise to a reasonable expectation of privacy  that
    the reasonable expectation of privacy must be determined independent of the
    conduct that threatens to compromise the students personal and sexual
    integrity. In my view, the result of this approach is ironic: the scope of the
    voyeurism offence is narrowed by the very thing Parliament intended to protect
    in establishing the offence  the reasonable expectation of privacy. The result
    is the opposite of what one would expect: surreptitious visual recording of
    high school students for a sexual purpose, while they are at high school, is
    not illegal.

[135]

As I have emphasized, the reasonable expectation of privacy is a
    normative rather than a descriptive or predictive concept. It must be
    established in particular rather than general circumstances. In my view, the
    high school students had a reasonable expectation of privacy in the
    circumstances of this case.

[136]

I would allow the appeal and enter a conviction.

Released: K.F. October 12, 2017

Grant Huscroft J.A.

[1]
See, for example,
R. v. MacKenzie
, 2013 SCC 50, [2013] 3 S.C.R. 250, at
    para. 91, where Moldaver J. refers to a right to privacy under s. 8. See also
R.
    v. Gomboc
, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 17.

[2]
See Timothy J. Horstmann, Protecting Traditional Privacy Rights in a Brave New
    Digital World: The Threat Posed by Cellular Phone-Cameras and What States
    Should Do to Stop It (2007) 111 Penn St. L. Rev. 739.


WARNING

The court directs that the
following should be attached to the file:

An order restricting
publication in this proceeding under s. 486.4 of the
Criminal Code
shall continue. This section of
the Criminal Code
provides:

486.4(1)       Subject to subsection (2), the
presiding judge or justice may make an order directing that any information
that could identify the victim or a witness shall not be published in any
document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence
under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
under this Act, as it read at any time before the day on which this
subparagraph comes into force, if the conduct alleged involves a violation of
the complainants sexual integrity and that conduct would be an offence
referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences
being dealt with in the same proceeding, at least one of which is an offence
referred to in paragraph (a).

(2)     In proceedings in respect of the offences
referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first
reasonable opportunity, inform any witness under the age of eighteen years and
the victim of the right to make an application for the order; and

(b)     on application
made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
respect of an offence other than an offence referred to in subsection (1), if
the victim is under the age of 18 years, the presiding judge or justice may
make an order directing that any information that could identify the victim
shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
than an offence referred to in subsection (1), if the victim is under the age
of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
inform the victim of their right to make an application for the order; and

(b) on application of the
victim or the prosecutor, make the order.

(3)     In proceedings in respect of an offence under
section 163.1, a judge or justice shall make an order directing that any
information that could identify a witness who is under the age of eighteen
years, or any person who is the subject of a representation, written material
or a recording that constitutes child pornography within the meaning of that
section, shall not be published in any document or broadcast or transmitted in
any way.

(4)     An order made under this section does not
apply in respect of the disclosure of information in the course of the
administration of justice when it is not the purpose of the disclosure to make
the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
13, s. 18.

Section 486.6 of the
Criminal
Code
provides:

486.6(1)       Every person who fails to comply with
an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
in subsection (1) applies to prohibit, in relation to proceedings taken against
any person who fails to comply with the order, the publication in any document
or the broadcasting or transmission in any way of information that could
identify a victim, witness or justice system participant whose identity is
protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. K.M., 2017 ONCA 805

DATE: 20171020

DOCKET: M48385 (C64129)

Strathy C.J.O. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

K.M.

Applicant/Appellant

Matthew Gourlay, for the applicant/appellant

David Friesen, for the respondent

Heard: October 16, 2017

STRATHY C.J.O.:

[1]

This matter comes
before me pursuant to s. 680 of the
Criminal Code
, R.S.C. 1985, c.
C-46, seeking an order directing a review by a panel of this court of an order
denying the applicant bail pending appeal.

Proceedings at trial

[2]

The applicant was found guilty of two counts of
sexual interference and two counts of sexual assault in relation to his then
minor daughters.
[1]
The circumstances involved repeated instances of sexual touching, while the
girls were sharing a bed with the applicant. The offences took place in the
family home, over a long time period. The trial judge noted that the acts never
progressed to more egregious and invasive forms of sexual abuse.

[3]

The trial judge sentenced the applicant to a
penitentiary term of thirty-four months after deducting two months credit for
pre-trial custody and stringent bail conditions  an effective sentence of
three years imprisonment. In sentencing the applicant, the trial judge
observed that the offences had devastating personal consequences for the
complainants and a deep and lasting impact on their lives. He also noted that
the applicant was a mature first offender with a significant history of
gainful employment.

The reasons of the bail judge

[4]

On the day he was sentenced, the applicant
sought bail pending his appeal to this court. The Crown opposed bail under the
first and third factors of s. 679(3) of the

Code
.

[5]

With respect to the first factor  that the
appeal is not frivolous  the applicant advanced grounds of appeal based on
innocent explanations for the sexual touching and innocent tainting of the
complainants evidence, thereby rendering it unreliable. Noting the absence of
trial transcripts, the bail judge found the first proposed ground did not pass
the not frivolous threshold. However, the ground based on innocent collusion
and tainting, as it related to the reliability of the complainants evidence,
was not frivolous.

[6]

On the third factor  that detention is not
necessary in the public interest  the bail judge referred to the decision of
the Supreme Court of Canada in
R. v.

Oland
,
2017 SCC 17,
347 C.C.C. (3d) 257. The applicant had
demonstrated that he was not a risk to public safety. The real issue was
whether he had established that his detention was not necessary to maintain public
confidence in the administration of justice. This, in turn, required a
balancing of the public interest in reviewability against the public interest
in enforceability. In accordance with the framework set out in
Oland
, at paras. 31-36, the bail judge then turned to a consideration of
the four factors in s. 515(10)(c) of the
Code
,
as adapted to the appellate context.
[2]

[7]

The bail judge rejected the applicants
submission that in the circumstances of this case, it was sufficient to merely meet
a not frivolous standard when assessing the apparent strengths of the grounds
of appeal. She found that, given the serious nature of the offences, a more
probing inquiry into the merits of the appeal was required. Referring to
Oland
,
at para. 44, she stated that the grounds of appeal in this case must clearly
surpass the minimal standard required to meet the not frivolous criterion.

[8]

The bail judge found that the innocent collusion
ground did not meet this standard because it would depend on a successful
challenge of the trial judges weighing and assessment of the evidence. She was
of the opinion that this would be a difficult ground of appeal, given the trial
judges detailed and thorough review of the evidence and careful findings of
fact.

[9]

Addressing the applicants submission that he
would have served most of his sentence before the appeal was heard, the bail
judge noted that the submission was based on the premise that he would be
granted parole after serving a third of his sentence, something that was not a
certainty.

[10]

Accordingly, the bail judge found that the applicant
had not established that his detention was not necessary in the public interest.
The public interest in immediate enforceability outweighed the public interest
in reviewability. She indicated that she would be prepared to consider a motion
to expedite the appeal, if requested.

R. v. Oland

[11]

In
Oland
, the Supreme Court provided
guidance concerning the public confidence factor. Moldaver J. noted, at para.
29, that this factor will rarely play a role in the decision to grant or deny
bail. An analysis of the merits, beyond the not frivolous threshold, will not
be required unless the case is likely to raise a concern about public
confidence. Where that concern exists, however, a more pointed analysis of the
strength of an appeal will be required for the purpose of assessing the
reviewability interest. He observed, at paras. 44-45:

In conducting a more pointed assessment of the
strength of an appeal, appellate judges will examine the grounds identified in
the notice of appeal with an eye to their general legal plausibility and their
foundation in the record. For purposes of this assessment, they will look to
see if the grounds of appeal clearly surpass the minimal standard required to
meet the "not frivolous" criterion. In my view, categories and
grading schemes should be avoided. Phrases such as "a prospect of
success", "a moderate prospect of success", or "a realistic
prospect of success" are generally not helpful. Often, they amount to
little more than wordsmithing. Worse yet, they are liable to devolve into a set
of complex rules that appellate judges will be obliged to apply in assessing
the category into which a particular appeal falls.

In the end, appellate judges can be counted on
to form their own "preliminary assessment" of the strength of an
appeal based upon their knowledge and experience. This assessment, it should be
emphasized, is not a matter of guesswork. It will generally be based on
material that counsel have provided, including aspects of the record that are
pertinent to the grounds of appeal raised, along with relevant authorities. In
undertaking this exercise, appellate judges will of course remain mindful that
our justice system is not infallible and that a meaningful review process is
essential to maintain public confidence in the administration of justice. Thus,
there is a broader public interest in reviewability that transcends an
individual's interest in any given case.

[12]

Moldaver J. also held, at para. 48, that in the
final balancing of the factors informing public confidence, appellate judges
should be mindful of the anticipated delay in deciding an appeal, noting that
where all or a significant portion of the sentence will be served before the
appeal can be decided, bail takes on greater significance if the reviewability
interest is to remain meaningful.

[13]

Finally, Moldaver J. gave guidance to panels of
appellate court judges reviewing decisions of single judges on bail, and to
chief justices in deciding whether to direct a panel review. As to the former,
he observed, at paras. 61-62:

Ultimately, in my view, a panel reviewing a
decision of a single judge under s. 680(1) should be guided by the following
three principles. First, absent palpable and overriding error, the review panel
must show deference to the judge's findings of fact. Second, the review panel
may intervene and substitute its decision for that of the judge where it is
satisfied that the judge erred in law or in principle, and the error was
material to the outcome. Third, in the absence of legal error, the review panel
may intervene and substitute its decision for that of the judge where it
concludes that the decision was clearly unwarranted.

This approach allows for meaningful review
while extending a measure of deference to the judge's decision.

[14]

He addressed the responsibility of the Chief
Justice, at para. 64:

The test, as I see it, should be relatively
straightforward in its application. It flows from the principles the panel is
required to apply when conducting a review. In short, the chief justice should
consider directing a review where it is arguable that the judge committed
material errors of fact or law in arriving at the impugned decision, or that
the impugned decision was clearly unwarranted in the circumstances.

[15]

With this background, I turn to the submissions
of counsel.

Applicants submissions

[16]

The applicant argues that the bail judge erred
in law by misapplying the Supreme Courts decision in
Oland
. In
particular, he argues that the bail judge adopted an overly expansive reading
of the public confidence test and permitted the apparently weak merits of the
appeal to overwhelm the balance of the analysis. He also asserts that the bail
judges decision was clearly unwarranted, in the sense used in
Oland
.

[17]

The applicant submits that the Supreme Court in
Oland
instructed courts to adopt a restrained approach to the public confidence
ground; it will only merit consideration where the offence is especially
serious, and therefore will rarely play an important role in the decision to
grant or deny bail pending appeal. He suggests that someone who is convicted of
an offence that is not at the high end of the spectrum, who is an excellent
candidate for bail, has an appeal that is not frivolous, and is subject to a
sentence that will largely be served before the appeal can be decided, should
as a general rule be granted bail pending appeal unless there is something
about the case that raises genuine public confidence concerns. The applicant
submits that nothing about this case other than the nature of the offences,
sexual abuse of children, could justify invoking the public confidence ground. The
sentence imposed in this case is below the sentencing range for this type of
offence. If the bail judge is correct, the applicant says, any offence of
sexual abuse in relation to children would engage the public confidence ground.

[18]

The applicant also contends that the bail judge
erred in giving too much weight to the perceived weakness of the appeal in her
assessment of the public confidence ground and, in particular, that she placed
too much emphasis on the lack of trial transcripts. She should have followed
the approach in
R. v. Badgerow
, 2017 ONCA 670, by focusing on the
broader context of the case, rather than delving into a detailed analysis of
the proposed grounds of appeal. The applicant points to what he suggests are
inconsistencies between the bail judges decision and
Badgerow
in submitting that a panel review would provide needed
clarification and guidance on the public confidence ground post-
Oland
.

[19]

The applicant also argues that the bail judge
erred by dismissing concerns that he will have served a significant amount of
his sentence by the time his appeal is decided on the basis that he may not be
granted parole. By any measure, he will have inevitably served at least a large
part of his custodial sentence before his appeal can be decided. Under
Oland
,
this factor should weigh heavily in the balance of enforceability and
reviewability.

[20]

Finally, the applicant argues that his detention
was unwarranted in the circumstances. He acknowledges that the phrase clearly
unwarranted in
Oland
indicates that a degree of deference is owed to
the determination of the bail judge, but argues that this deference is not
unlimited.

Respondents submissions

[21]

The respondent submits that the bail judge made
no factual or legal errors that would justify directing a panel to review her
decision, nor was her decision unwarranted. She applied the test from
Oland
correctly and this application should be denied.

[22]

The bail judge did not err in finding that the
offences in this case were serious. She considered the factors set out in
Oland
and noted that the applicant sexually abused his daughters over a period of
years when they were young and particularly vulnerable.

[23]

The bail judge then applied the correct test
from
Oland
after deciding that the offences were serious enough to
warrant a more probing inquiry into the merits of the appeal. She did not err
in finding that the merits of this case were far from strong. The grounds of
appeal in this case do not clearly surpass the not frivolous threshold because
they depend on a successful challenge of the trial judges assessment and
weighing of the evidence.

[24]

The respondent further argues that the bail
judge did not err in concluding that it was far from certain that the applicant
would get parole, particularly in light of the trial judges conclusion that he
lacked remorse.

Analysis

[25]

The question before me, then, is whether it is
arguable that the bail judge committed material errors of fact or law in
arriving at her decision, or whether her decision was clearly unwarranted.

[26]

The applicant has not identified any material
error of fact or law. In determining whether the offences were serious, the
bail judge applied the factors set out in
Oland
. She identified aggravating factors, including: the frequency and
long-term nature of the assaults; the vulnerability of the young victims; and
the egregious breach of trust by a parent. The bail judges assessment of the
seriousness of the offences is consistent with the trial judges conclusions
and does not reflect an error.

[27]

As the respondent notes, there are several
decisions of this court, both before and after
Oland
, in which bail was denied in cases of sexual offences against
children, which were described as serious: see
R. v. R.B.
, 2014 ONCA 772;
R. v. H.B.
(13
February 2015), C59960/M44723 (Ont. C.A.);
R. v. V.J.
(16 September 2016), C62416/M46931 (Ont. C.A.);
R. v.
A.Z.
(4 May 2017), C63647/M47771.

[28]

As well, the applicant has identified no error
of fact or law in the bail judges conclusion that the merits of the appeal did
not surpass the not frivolous standard. As the respondent points out, the
defence at trial appears to have been based on the assertion that the
complainants deliberately invented false allegations against their father to
punish him for past acts of violence or other parental misconduct.

[29]

In the absence of transcripts or some other
evidence as to what was at issue at trial, it is not apparent that the theory
of innocent collusion was put forward by the defence. If it was not advanced at
trial, it would be difficult to fault the trial judge for failing to address
this theory in his reasons. In any event, the trial judge addressed the
circumstances in which the abuse came to light and found that the complainants
had not colluded at all, for any reason.

[30]

I would add that I do not see that the absence
of a trial transcript should curtail the scope of the merits factor, as
submitted by the applicant. As Moldaver J. noted in
Oland
, at paras. 44-45, the assessment of the strength of an appeal must
be based on the materials in the record. Where necessary, this can be provided
through an affidavit of trial counsel, setting out the pertinent evidence and
the submissions at trial. Alternatively, digital recordings of the evidence and
submissions can be obtained in a fraction of the time and cost of obtaining
transcripts.

[31]

Based on the record that existed before her, I
can see no arguable error of fact or law in the bail judges conclusions on the
merits of the appeal.

[32]

Nor has the applicant demonstrated an arguable error
in the bail judges conclusions as to the likelihood of parole, a finding that
is entitled to deference.

[33]

I turn to the issue of whether the bail judges
decision was clearly unwarranted. I agree with the observation of Slatter J.A.
in
R. v. Beairsto
, 2017 ABCA 254, at para. 5:

It is worth noting that the "
clearly unwarranted" standard of
review mentioned in
Oland
is not engaged just
because one judge, or one panel of judges, might have come to a different
conclusion than some other judge or panel. "
Clearly unwarranted" is more closely analogous to
finding that the decision to be reviewed is so contrary to the facts and the
law that no reasonable judge could have made it. The standard of "
clearly unwarranted" is not an
invitation for the applicant to simply reargue the initial application for
release, in the hope that a different result might emerge from a different
balancing of the relevant factors:
R. v St-Cloud
,
2015 SCC 27
, at paras. 117-9,
[2015] 2 SCR 328
.

[34]

While different judges might have come to a
different decision on the facts of this case, that is the very essence of
judicial discretion. I cannot say that the decision here was clearly
unwarranted.

[35]

In my view, the bail judges decision is not
inconsistent with
Badgerow
, a case that
counsel concedes is one of a kind. Nor do I see the need to refer this matter
to a panel for the purpose of clarifying the approach to
Oland
.

[36]

For these reasons, the application is dismissed.

G.R.
Strathy C.J.O.

[1]

Conditional stays of proceedings were entered on the sexual
assault counts, pursuant to the rule against multiple convictions.

[2]

The bail judge characterized them, for appellate purposes, as:
(i) the apparent strength of the grounds of appeal; (ii) the gravity of
the offences; (iii) the circumstances surrounding the commission of the
offences; and (iv) the fact that the appellant has been sentenced to a
potentially lengthy term of imprisonment.