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Not an ‘honest unfortunate’: B.C. man will face lawsuit over filming women in toilet

A grocery store manager’s bankruptcy over a “very minor” debt of $4,484 shouldn’t protect him from a lawsuit accusing him of surreptitiously filming his coworkers in the bathroom and posting the images online, a B.C. judge says.

Matthew Schwabe is accused of hiding a camera in the women’s washroom at Mattick’s Red Barn Market in Saanich on Vancouver Island, then uploading photos to a Russian “revenge porn” website. Both he and the company are named in a proposed class action lawsuit filed by two alleged victims.

But proceedings against Schwabe were stayed last spring after he filed bankruptcy papers, claiming a debt in the low four figures and a monthly deficit of just $50.

That stay was lifted in B.C. Supreme Court on Tuesday, when Justice Brian MacKenzie said bankruptcy is no defence against a claim “for bodily harm intentionally inflicted,” as is the case here.

“Additionally, the very minor financial difficulty in which Mr. Schwabe found himself when he decided to file for bankruptcy three months after the plaintiffs filed their claim leads me to conclude that he is not an ‘honest unfortunate’ who should be ‘rewarded … by a release of liability’ if he is found to be responsible for capturing and disseminating the explicit images at issue,” MacKenzie wrote.

The judgment lines up with the arguments of Jennifer Burke and Mallory Colter, the two women who filed the lawsuit. They allege Schwabe only claimed bankruptcy to dodge their claims.

At least 7 women allegedly filmed

Burke and Colter are just two of at least seven young women who were recorded while changing, using the toilet or fixing themselves up in the Red Barn bathroom, according to the judgment. In affidavits filed with the court, the women alleged Schwabe often made sexist comments and inappropriate remarks about women’s bodies at work.

“Another former Red Barn employee deposes that Mr. Schwabe exposed his penis to her during an early morning shift,” MacKenzie wrote in this week’s judgment.

The women claim the experience has caused them serious psychological harm, including ongoing anxiety.

Two former employees of the Red Barn Market in Saanich claim they were surreptitiously photographed by a co-worker and their images were posted on a Russian ‘revenge pornography’ website. (CHEK News)

Burke and Colter say they first learned what had happened when Saanich Police contacted them in February 2016. Burke alleges investigators showed her images of six other young women whose privacy had been violated, including five other employees and Schwabe’s former roommate.

When Burke checked out the Russian website where the images had been posted, she says she recognized Schwabe’s bathroom at home in the photos of his female roommate.

Order for police to hand over evidence

Saanich police searched Schwabe’s home in June 2016 and arrested him for voyeurism and publishing intimate images without consent, but he has not been charged. According to Burke and Colter, a criminal investigation is still underway.

Schwabe admits he was arrested and his home was searched, but he argues the women haven’t proven he’s responsible for the illicit photos, saying their evidence about what police officers told them is inadmissible hearsay.

To that end, the judge also granted an order this week for Saanich Police to hand over any documents, recordings and images related to their investigation into the matter.

The claim has yet to be certified as a class action lawsuit and none of the allegations have been proven in court.

In its response to Burke and Colter’s claim, Red Barn says it was not aware of any recording devices installed in its washrooms, and that any damages suffered by the women are solely the result of Schwabe’s actions.


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