Video not intentional: Accused
Hockey referee, 60, on trial for voyeurism after female colleague recorded in change room
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.