Man who tried to record wife having affair guilty of voyeurism, B.C. judge rules

FILE: A close-up image of a camera lens is seen in an undated Shutterstock image.

A suspicious husband who surreptitiously installed a hidden camera in the bedroom of his B.C. home – with the admitted intention of catching his wife being unfaithful – has been found guilty of voyeurism.

A publication ban protects the identities of both the husband and wife in the case.

The unusual criminal trial, which was heard in the Vancouver Island community of Courtenay following the couple’s acrimonious divorce, highlights a lesser-known aspect of Canada’s voyeurism laws – one that applies even when a victim is not watched or recorded for a sexual purpose.

Judge Alexander Wolf accepted that the husband’s motivation for secretly recording his wife was not sexual, and noted there was no evidence his camera, which was hidden in a clock radio, ever captured any infidelity.

In fact, only one video of the wife, recorded in July 2020, was presented as evidence. Though Wolf confirmed “for the sake of clarity” that the woman was alone in the recording, he described the exact contents of the video as “irrelevant.”

“It does not matter whether the complainant was clothed, sleeping or watching TV,” Wolf wrote in his Oct. 17 decision.

That’s because under section 162(1)(a) of the Criminal Code, a victim only has to be observed somewhere they can “reasonably be expected to be nude … or to be engaged in explicit sexual activity” for an offence to have occurred, the judge said.

“The recording device was placed in a bedroom. This point in itself, in my view, satisfies the legal criteria of the charge,” Wolf wrote. “The bedroom is one of the most private places in a family home. As well, (the camera) was placed next to the bed, aimed to capture images on the bed.”

The court heard the husband, after being arrested, was “very co-operative” with police, and admitted to having installed the camera in their bedroom, even explaining how he programmed it to start recording after detecting movement.

He also acknowledged having done so without his wife’s knowledge, telling police, “She didn’t have a clue,” according to the decision.

The husband gave multiple reasons for installing the camera apart from his intention to catch his wife in an affair, including to protect himself from any claims of abusive behaviour that might be leveled against him during their separation.

But none of the husband’s reasoning forgave what the judge found to be a criminal intrusion on his wife’s privacy.

“This case is not about whether either marital partner was being faithful or unfaithful. The sole question that I must consider is whether the Crown has proven the accused acted in a criminal matter,” Wolf wrote.

“This is a very easy, straightforward conclusion for me to reach.”

The husband was also charged with criminal harassment, with allegations that ranged from following his wife to taking out a humiliating ad in a newspaper suggesting she might be planning to take their children out of the country without his permission.

While Wolf found there was evidence the husband was “controlling,” “rude” and “insensitive” towards his wife prior to their divorce, he ultimately acquitted him of the second charge.

“Many of the events in this trial are one hundred per cent consistent with a high conflict divorce case,” the judge wrote. “This is a criminal trial, and I am not satisfied beyond a reasonable doubt that (the wife) was criminally harassed by the conduct of the accused.”

On the voyeurism charge, the Crown suggested a short jail sentence would be appropriate, with three years of probation. Notably, the husband’s lawyer had applied to be removed as counsel by sentencing – for reasons that are not specified in the court documents – and did not participate in the hearing. The husband, who by then was living in England, did not attend either.

Wolf ultimately decided on a conditional discharge, meaning the husband will have no criminal record if he abides by the terms of his probation for 12 months. Those terms include that he remain on good behaviour and not contact his wife except through writing, email or text, and only to discuss their children.

“In coming to this conclusion, I have considered the gravity of the offence, that the circumstances of this case are extremely unique and thus the exact offending behaviour in the community is not prevalent,” the judge wrote.

“I am of the view that the sentence that I am imposing would be seen by the public as a fair and proportional response to the crime this accused committed.”