The latest edition of the Canadian IT Law Association Newsletter (full disclosure: I'm a contributor, but didn't write this piece) has a very good summary of a recent case from Ontario (R v [Redacted on request], 2014 ONCJ 130) that held, among other things, that a person at a nude beach has no expectation of privacy. (See: Nude Beach Photography is not “Voyeurism” - Canadian IT Law Association - l’Association canadienne du droit des technologies de l’information). In this case, the accused was charged with voyeurism under the Criminal Code after he overtly took photographs of people at a clothing optional beach. The accused was found not guilty because he was acting overtly (and not surreptitiously, as the Code requires) and because the complainant did not have a reasonable expectation of privacy.
In particular, the offence required that the accused be acting “surreptitiously” and that he infringe upon the complainant’s reasonable expectation of privacy, and the trial judge found that neither of these requirements were met. Although MW was not aware that her photograph was being taken, the accused was making no attempt to conceal his activities, his camera was not concealed or disguised, the presence of the stroller attracted rather than deflected attention, and the accused’s testimony that he was indifferent to whether other people saw him take photographs was not only uncontradicted but consistent with the facts. Further, although MW testified that she subjectively expected privacy, and although she was annoyed by the accused’s behavior in taking her photograph without permission, her expectation of privacy was not a reasonable one. The beach was a public one which was a clothing-optional one, there were no signs forbidding cameras or the taking of photographs, no City policy addressed the taking of photographs, and indeed many other people at the beach in addition to the accused were taking photographs on that day (including, ironically, MW herself at the time she was being photographed). Although there might have been some evidence that the accused’s behavior was a breach of etiquette and disappointing to some people, this was not the equivalent of a reasonable expectation of privacy. Accordingly the elements of the voyeurism offence were not made out, and for similar reasons the accused was also not guilty of mischief.