Video not in­ten­tional: Ac­cused

Hockey ref­eree, 60, on trial for voyeurism af­ter fe­male col­league recorded in change room

Kingston Whig-Standard - - FRONT PAGE - SUE YANAGISAWA

A 60-year-old hockey ref­eree, ac­cused of us­ing his cell­phone to get a sneaky peek at a fe­male fel­low of­fi­cial in her al­to­gether, said it was an ac­ci­dent of tech­nol­ogy.

Michael L. Er­ler, who was charged in Fe­bru­ary 2016 with voyeurism, tes­ti­fied Wed­nes­day as the fi­nal wit­ness at his own trial, which be­gan in May this year in Kingston’s On­tario Court of Jus­tice.

The case has now been put over to late Oc­to­ber to set a date for Jus­tice Larry O’Brien’s de­ci­sion.

Er­ler told the judge that he started ref­er­ee­ing hockey about 13 years ago and at the time of his ar­rest was of­fi­ci­at­ing four to five nights a week “on av­er­age.”

He hasn’t been on ice in that ca­pac­ity, how­ever, in the 19 months since a fe­male ref­eree found his cell­phone set on video-record in the change room they were shar­ing at the In­vista Cen­tre.

Jus­tice O’Brien was told ear­lier in the trial that game of­fi­cials’ dress­ing rooms in the arena are shared by both gen­ders, who work it out among them­selves. That night, Er­ler’s ac­cuser was the only fe­male in their group of four ref­er­ees.

Two of the men still had a late night game to of­fi­ci­ate and had re­turned to the ice when Er­ler and the woman com­pleted their du­ties. In May, she de­scribed to the judge how Er­ler ab­sented him­self, al­low­ing her to use the dress­ing room first to change out of her uni­form, and she said she did it quickly, not both­er­ing to shower.

She told Jus­tice O’Brien she was on her way out when she spot­ted his cell­phone, propped up­right in a cor­ner against a black case, its screen fac­ing in­ward to­ward the wall.

She wouldn’t have even no­ticed it, she said, ex­cept for some­one else’s bag left in the cen­tre of the room forced her to curl her bag around the ob­sta­cle.

She thought the po­si­tion­ing of the de­vice, op­po­site her bench and the en­trance to the show­ers on the other side of the room, was odd. In­ves­ti­gat­ing, she said she tipped it over with a finger, re­al­ized it was record­ing, and then dis­cov­ered it had been record­ing her: the newly cre­ated video she viewed cap­tured her strip­ping and chang­ing into street clothes.

Af­ter the ini­tial shock, ac­cord­ing to her ev­i­dence in May and the ev­i­dence of two of her fel­low ref­er­ees from that night, she got an­gry, sought their sup­port and called Kingston Po­lice.

Er­ler, how­ever, claimed he never in­tended to record her and sug­gested that he isn’t com­pletely pro­fi­cient with the tech­nol­ogy be­hind the phone he was us­ing.

His lawyer, Lanny Kamin, asked him if he used the video func­tion on his cell­phone much and Er­ler replied, “not on pur­pose, no.”

He’d used the cam­era func­tion to take stills when he was liv­ing in Nanaimo, B.C., he said, and on one oc­ca­sion had tried to record a sea plane land­ing. The re­sult­ing video was blurry, he tes­ti­fied, and he deleted it.

That Fe­bru­ary night in 2016, he said, he used the phone at the be­gin­ning and end of the night to try to send a text to his daugh­ter and con­nect to the arena’s Wi-Fi in or­der to look at his up­com­ing ref­er­ee­ing as­sign­ments.

Some­times you can get on with­out a pass­word, he told the judge, and some­times you can’t: that night he couldn’t, but he said he tried while he and the other ref­er­ees chat­ted be­fore the first game.

The judge heard ear­lier in the trial that the use of cell­phones and other record­ing de­vices in the change rooms is banned and there are signs posted to that ef­fect. But even Er­ler’s ac­cuser ad­mit­ted the rule is largely ig­nored, and game of­fi­cials, in­clud­ing her, rou­tinely check their mes­sages when off-ice.

Er­ler tes­ti­fied that con­trary to ev­i­dence given ear­lier by his ac­cuser, there was no black case prop­ping up his phone in the change room that night.

He told the judge that he ha­bit­u­ally leaves it, screen-side down, in­side the crown of his hat — in this case a black ball cap — on top of his gloves. He also said he tends to push his hat into a cor­ner of his change area, out of the way.

He even­tu­ally agreed with as­sis­tant Crown at­tor­ney Greg Sk­erkowski, how­ever, that the phone would have needed to be es­sen­tially up­right to take the of­fend­ing video.

Sk­erkowski sub­mit­ted two videos from Er­ler’s phone into ev­i­dence. The first, which was ear­lier shown in open court, cap­tures the fe­male ref­eree and an­other of the male ref­er­ees, both fully clothed, con­vers­ing early in the evening. His male coun­ter­part is partly ob­scured by Er­ler’s left knee and equip­ment bag, and the video in­cludes footage of the change room ceil­ing as well as an ex­treme close up of what ap­pears to be his fin­ger­tip at the end .

Er­ler tes­ti­fied it was recorded un­in­ten­tion­ally while he was log­ging the phone off, but he wasn’t able to ex­plain ex­actly how.

The sec­ond video placed in ev­i­dence forms the sub­stance of the charge against Er­ler and is un­der court seal and con­se­quently can’t be viewed by the pub­lic. Sk­erkowski put it to Er­ler that the an­gle the sec­ond video was shot from ap­peared to have been ad­justed for a bet­ter view of the com­plainant’s change area than the first video af­forded.

Er­ler didn’t dis­agree the van­tage was clearer, but he sug­gested it was ac­ci­den­tal.

He told Sk­erkowsi he’d only owned that par­tic­u­lar phone for seven months at the time of his ar­rest and he’d pre­vi­ously had prob­lems with it open­ing and run­ning pro­grams on its own, us­ing up time on his plan. “That’s why I started lock­ing the screen, so it wouldn’t do that,” he tes­ti­fied.

The night of his ar­rest, af­ter the elapse of what he thought was a rea­son­able amount of time, Er­ler said he re­turned to the change room, knocked, and re­ceiv­ing no re­sponse, en­tered. He told Jus­tice O’Brien that he took a shower and packed up his gear, and it was only when he grabbed his hat he dis­cov­ered his cell­phone was miss­ing.

Er­ler said he went look­ing for the fe­male ref­eree “to see if she’s got my phone or what the deal was,” and rea­son­ing that “she was the last per­son there,” and if she hadn’t picked it up she might have seen who did.

He was in the main mall of the arena, head­ing to­ward the front doors with his gear, he told the judge, when he spot­ted ref­er­eein-chief Kevin Le­belle out of the cor­ner of his eye. Er­ler re­called say­ing some­thing to the ef­fect of, “Hey, Kevin, what’s go­ing on?” and Le­belle re­ply­ing, “We need to have a talk.”

Er­ler said he asked: “Oh yeah, what about?” which is when he said the fe­male ref­eree stood up and an­swered: “You know what. You sick f---.”

He re­called her call­ing him a per­vert and said “it caught me off guard. I wasn’t ex­pect­ing some­one to be yelling and scream­ing at me and call­ing me names.”

She then made a phone call, Er­ler said, and told him po­lice were on the way.

Er­ler said he didn’t think to ask about his miss­ing phone at that point, and then she was say­ing that “I took a video or a photo of her or what­ever.”

He­toldJus­ticeO’Brien:“Hon­estly, I couldn’t think why she would say I did that.”

Le­belle tes­ti­fied in May that Er­ler ap­peared to him to be con­fused when the woman con­fronted him and told him she had his phone.

They ex­changed words, he said, and “the ver­bal con­fronta­tion was get­ting es­ca­lated.”

Le­belle said he told Er­ler that po­lice were com­ing and would want to talk to him and “I told him he could stay or go,” but to move away from where he and the woman were wait­ing.

Er­ler de­nied do­ing any­thing, ac­cord­ing to Le­belle, but “he was get­ting loud and he seemed to be get­ting very de­fen­sive.”

Er­ler told Jus­tice O’Brien that at some point around then he re­mem­bered he’d ear­lier agreed to buy skate laces from one of the rink at­ten­dants and went look­ing for the man.

By the time he re­turned, Const. Rick Whalen had ar­rived.

“I said: ‘I think you’re look­ing for me,’” Er­ler re­called telling him. They spoke and Er­ler said he went down the hall to get a drink.

When he got back, he said, a male po­lice sergeant and a fe­male po­lice of­fi­cer had joined Whalen, who told him that they couldn’t get into his phone. He tes­ti­fied that he turned it on for them, “and the cam­era func­tion was on.”

Er­ler said Whalen had “cau­tioned me when I first talked to him,” and cau­tioned him about his legal jeop­ardy sev­eral more times af­ter, of­fer­ing to let him speak to a lawyer, be­fore he gave them ac­cess to the phone. He didn’t take ad­van­tage of that of­fer.

Af­ter he was ar­rested and taken to po­lice head­quar­ters, how­ever, he told the judge “they in­sisted.” He added that the lawyer he sub­se­quently spoke with ad­vised him that he shouldn’t have fa­cil­i­tated ac­cess to his phone and told him to stop talking to po­lice.

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