R v A.S 2023 ONCA 649
- Andrew Hammond
- Jun 2
- 3 min read
Recent Case Law
Overview
The accused, identified only as A.S. because of a publication ban, was convicted of 33 counts of voyeurism and sentenced to two years in prison. He asked the Court of Appeal to release him on bail while his appeal was heard. Bail before an appeal is decided is called bail pending appeal. It lets a convicted person stay out of custody until the appeal is over, rather than serving time during the wait. The Crown opposed his release. On October 3, 2023, Justice Miller dismissed the application and the accused stayed in custody.
Key Findings
What he did Over roughly seven years (2011 to 2018), the accused secretly recorded a large number of women in multiple locations, usually while they showered or used the toilet. The recordings took planning, since he had to set up hidden cameras repeatedly. He stored the videos on USB drives organized by body part and went back to them for sexual gratification. His victims included women he mentored, friends, and an intimate partner. None of them knew or agreed to being recorded.
His broader record He was a former RCMP officer. In 2022, he was convicted in British Columbia of exposing himself and committing indecent acts in front of schoolgirls in uniform near two private schools. The voyeurism videos were actually discovered during the search in that BC investigation. While on bail in BC and after being discharged from the RCMP, he was arrested again over allegations that he impersonated a police officer using a forged RCMP badge. In one incident he allegedly shouted "police, stop her" at a passing cyclist, and a bystander pushed her off her bike and broke her arm.
Could the judge consider the impersonation allegations? The accused argued no, because he had not been charged nearly a year later and is presumed innocent. The judge disagreed. He drew a line between charges that were withdrawn (which can never be proven and should not count) and charges that are still pending. Here the Crown confirmed charges were coming, and the forged badge had been seized and sent for forensic testing. So the judge was allowed to weigh those allegations.
The two-part legal test Under section 679(3)(c) of the Criminal Code, a judge can refuse bail pending appeal in the public interest. There are two branches.
Public safety. The judge found this was not a one-time offender. The patterns showed planning and commitment carried out over months and years, amounting to a long history of premeditated domination of women and girls for sexual gratification. His proposed supervisors, called sureties (people who promise to watch over him and pledge money if he breaks the rules), were his wife and father-in-law. The wife's sworn statement said nothing about the forged badge. The judge had no confidence either surety could control him.
Public confidence. This branch balances two things. One is the value of letting an appeal actually be heard before someone serves most of a sentence. The other is the public interest in seeing a serious sentence carried out. The judge found the appeal could be heard quickly because it raised only one narrow issue, whether the search that found the USB drives broke section 8 of the Charter (unreasonable search and seizure). The appeal grounds were arguable but weak, just re-arguing points already rejected at trial. Set against an escalating pattern of serious conduct, what was described as the longest sentence yet imposed for voyeurism, and an offender who took no responsibility, releasing him would undermine confidence in the justice system.
Outcomes
The application for bail pending appeal was dismissed. The accused remained in custody.
The judge refused bail on both branches. Either one alone would have been enough.
Two points worth remembering for the field. First, a court can weigh serious uncharged conduct against an accused when charges are genuinely pending, which is different from charges that have been withdrawn. Second, the case signals that sentences for voyeurism are climbing, with this two-year term flagged as the longest yet.
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