How much privacy can swimmers reasonably expect at an outdoor public pool?
The issue is being put under a legal microscope after a Winnipeg man pleaded not guilty to the rare charge of voyeurism.
Brian Zerbin denies he went to the Kildonan Park Outdoor Pool on the afternoon of Canada Day 2012 to covertly photograph swimmers.
The Crown must prove beyond a reasonable doubt Zerbin took the pictures for a sexual purpose, an essential factor that's the key issue in the unusual case.
Zerbin's trial began Wednesday in front of provincial court Judge Ted Lismer.
He is presumed innocent.
Police arrested Zerbin, 47, at the public facility after people complained a man was taking pictures of the pool area from outside a chain-link fence separating it from the public park.
'We asked him to see the camera and he got defensive. We asked him what (the pictures) were of and he got defensive. We asked if he wanted to delete them, he got defensive'
Court has heard just one relevant photo was retrieved from Zurbin's camera by the Winnipeg police tech-crimes unit. It depicts two teen girls -- or possibly young women -- in two-piece bikinis. It was taken at a distance away from the pool and clearly from outside the fenced-in area.
Const. Robin Koreen testified an analysis showed it was taken July 1, 2012.
City of Winnipeg lifeguard Matthew Haworth told court he and a colleague were twice alerted that day to complaints of a man seen taking photos.
The first went unresolved after the purported photographer couldn't be found.
But soon after, Haworth testified, he encountered a man near a maintenance area not generally used by the public. It appeared he was raising his camera as if to snap pictures.
He was just outside the pool grounds.
"He put his head up like he's lost and starts to wander away from the pool area," Haworth testified.
When questioned about what he was doing, Haworth said the man offered up conflicting stories.
"We asked him to see the camera and he got defensive. We asked him what (the pictures) were of and he got defensive. We asked if he wanted to delete them, he got defensive," Haworth said.
The man ultimately let the lifeguards look at what was on the camera, court heard.
A supervisor was notified and she called park police and city police.
She described the situation as "serious."
"I immediately thought this needs to be taken to the next level. It needs to be documented," Kristen Parkin told the judge.
Zerbin was co-operative and provided identification, she said.
He didn't try to leave and ultimately allowed her to seize the camera, she said.
Shown the photo of the two girls in bathing suits, Parkin said it looked as if it was taken from a treed area.
Haworth and Parkin each described how the city's policies regarding photography at its pools had been passed on to them verbally by superiors.
Photos are only allowed to be taken inside pool grounds as long as the person snapping the shutter is capturing people they're with, both Parkin and Haworth said.
Haworth testified lifeguards will ask to view the images to ensure they're allowed.
The rule exists for people's privacy and safety, Parkin said.
Staffers who see photos being taken will question the photographer about what they're doing and will ask that any pictures deemed out of bounds be deleted, Lismer heard.
As far as images taken of the pool from outside the property, lifeguards are to deal with it and call police, if necessary.
Haworth testified there were no signs inside pool grounds alerting swimmers to the photo policy. Parkin couldn't recall if there were signs to the same effect outside the pool area advising the public of the city rules.
In his opening statement, Crown attorney Adam Bergen told the judge it's not illegal for people to take photos in public "but where the observation occurs in a manner that's surreptitious and of people who are subject to a reasonable expectation of privacy... if it's for a sexual purpose, is an offence -- regardless of what it is they're doing or engaged in or how they're dressed."