[ql06] CRIMINAL: Hidden bathroom camera legal
- From: "Ken Campbell" <2kc16@xxxxxxxxxxxxxxxx>
- To: <ql06@xxxxxxxxxxxxx>
- Date: Wed, 19 Nov 2003 22:27:31 -0500
In Gary Trotter's criminal class, back a while, Gary offered up the
scenario of the "toecam" -- those cameras certain people use to
photograph up skirts. Trotter mentioned that it's not in the criminal
code, so not (yet) a crime.
We had a discussion in which one list member (who can ID themselves)
suggested there was nothing wrong with a toecam.
Wellll... here's what Gary was talking about. In Hamilton, this guy gets
off, criminally. (It's an opinion piece, so forgive the author's
editorial flourishes. I cannot find the case itself, so don't have more
details.)
I'm sure the woman in question would have a tortious action, though.
Invasion of Privacy is a well established tort in Canadian common law.
Ken.
--
The more I study religions, the more I am convinced
that man has never worshipped anything but himself.
-- Richard F. Burton
--- cut here ---
Hidden bathroom camera legal, court finds
BY SUSAN CLAIRMONT
Hamilton Spectator
Nov. 18, 2003
It's the difference between what's wrong and what's criminal.
Installing a pinhole camera in the ceiling of a public bathroom and
secretly recording a woman using the toilet is wrong.
But it's not illegal.
Former hair salon manager Giacomo Luppino slipped easily through that
gigantic legal loophole last week when the case against him and his
Peeping Tom ways was thrown out of court.
Even though the 29-year-old admitted to hiding a camera in the washroom
at Synergy Hair in Jackson Square, and even though police seized a video
tape showing a woman using the washroom, nothing stuck to Luppino.
Unless, of course, you count the reputation of being a pervert.
Police say they believe Luppino had the camera installed for salacious
reasons. That he intended to watch employees and clients use the toilet
or change into robes provided for customers who were getting their hair
coloured.
Detective Sergeant Lisa DiCesare says the unisex bathroom which locked
from the inside would have given any user "an expectation of privacy"
and the taped woman "was clearly victimized and her privacy was
invaded."
Luppino's lawyer, Dean Paquette, paints his client in a different light.
"There was never any issue of what he did," Paquette says. "It was an
error in judgment."
His intentions were not lewd, the lawyer says. Luppino was just trying
to catch shoplifters.
Goodness. Does anyone actually expect us to believe that?
Does a grown man really think spying on people in the bathroom is the
right way to address the pocketing of combs and brushes?
What Luppino did was reprehensible. Disgusting.
But those are moral judgments. Legally, Luppino is innocent as a lamb.
Here's why.
The section of the criminal code under which the hairdresser was charged
with mischief makes it an offence to interfere with somebody's "lawful
use, enjoyment, or operation of property."
The catch is that the victim must know at the time of the offence that
their use, enjoyment or operation is being interfered with, according to
Crown attorney Tim Power. The woman in the video apparently didn't have
a clue she was being watched in the bathroom. And so, by the ridiculous
legal logic set out by a 1991 Ontario Court of Appeal ruling, no crime
was committed.
Paquette didn't have to say a word in his client's defence. He didn't
have to spin his shoplifting tale or go on about poor judgment. The
assistant Crown handling the case was compelled to withdraw the charge
after learning about the case of a dentist who was also charged with
mischief for having a two-way mirror in his office that allowed
employees to secretly watch women in the washroom. The women didn't know
about the mirror, therefore their enjoyment wasn't interfered with, was
the appeal court's decision.
Power says the Crown's office has already begun a process to bring the
legal gap to the attention of federal lawmakers in an effort to change
legislation.
In the meantime, Luppino goes unpunished. By legal standards anyway.
Paquette says his client suffered a great deal at the hands of police
and the media. There was no "presumption of innocence."
The cops held a press conference the day of the arrest. They announced
they had seized 100 videotapes from Luppino's home, leaving the
impression they all contained bathroom footage. In reality,
investigators hadn't yet seen the tapes. And in the end, police said
only one film was shot in the bathroom. The pinhole camera had only been
in place one day before someone reported it to police.
For their part, the police say the press conference was held to alert
the public to the invasion of privacy and encourage potential victims to
come forward.
Paquette says the charge and the publicity cost Luppino his business.
All his employees quit in the wake of the scandal and the salon has
since closed.
And therein lies the difference between what's justice and what's just.
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