Swimmers and others using Winnipeg's outdoor public pools have the right to not be photographed without their knowledge by people who would use the picture for a sexual purpose.
That's the significance of a provincial court decision Thursday that saw a man convicted of the rare charge of voyeurism for his conduct at the Kildonan Park Outdoor Pool on July 1, 2012.
Brian Zerbin learned his fate following a two-day trial. He had pleaded not guilty.
Judge Ted Lismer sided with the Crown and police that Zerbin broke the law by snapping a single photo of two female swimmers. The picture was taken from outside the fenced-in pool.
The 47-year-old was arrested at the pool. Police were called by lifeguards who had spotted Zerbin appearing to take pictures from a maintenance area next to the pool grounds.
Zerbin told police he had, in the past, taken photos of women for his own sexual gratification, Const. Mark Raposo testified Thursday.
Zerbin confirmed this in a videotaped police statement that was played in court.
He will be sentenced later this year. A pre-sentencing report was ordered into his background and personal circumstances.
A major feature of the unusual case was debate over what expectation of privacy bathers at outdoor pools should expect, given they're at a public facility surrounded by others.
Crown attorney Adam Bergen asked Lismer to look at the context of the situation. Bathers may not have been offended at knowing they were in somebody's picture without their express consent but would naturally be aggrieved at finding out their image was used in a sexual manner, he said.
"People don't expect people to take pictures of them secretly and take them home to masturbate to," Bergen said. "The inferred purpose greatly affects a person's expectation of privacy."
Defence lawyer Michael Dyck agreed "a line" exists when it comes to privacy expectations. Dyck argued people at the pool had to have known other people would see them in their swimming gear -- including potential observers looking in from outside the chain-link fence.
Dyck tabled a brochure available at Winnipeg pools that doesn't list any rules about photography at city pools.
"It seems the main way people heard about the policy is from staff when an issue arose," he said.
Much was made during the trial of a lack of public information about the photography policy.
City officials are aware it's an issue, City of Winnipeg pool supervisor Michael Hadder told court.