Understanding Voyeurism Offences in Canada

Voyeurism involves secretly observing or recording someone without their knowledge in a situation or place where they have a reasonable expectation of privacy. However, from a legal standpoint, there is far more to it than at first glance.

Our comprehensive overview will examine the nuances and intricacies of voyeurism charges in Canada and how an experienced criminal defence lawyer can help you.

Voyeurism Under the Criminal Code

Voyeurism was added to the Criminal Code of Canada in 2005 to shield individuals from sexual exploitation and violations of their private lives. With the increased use of smartphones with advanced cameras and photo applications, voyeurism charges have surged, and sexual assault lawyers have become critical in representing the accused to ensure their rights are protected and justice is served.

S.162(1) of the Criminal Code of Canada defines voyeurism as follows:

162 (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;

(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity;

or

(c) the observation or recording is done for a sexual purpose.

In other words, it is considered voyeurism if a person secretly watches or visually records another person in a place where they would reasonably expect privacy.

Penalties and Sentencing for Voyeurism Offences

You don’t have to be the person committing the voyeurism to be charged with a criminal offence. Section 162(4) of the Criminal Code states:

Every one commits an offence who, knowing that a recording was obtained by the commission of an offence under subsection (1) [voyeurism – forms of offence], prints, copies, publishes, distributes, circulates, sells, advertises or makes available the recording, or has the recording in his or her possession for the purpose of printing, copying, publishing, distributing, circulating, selling or advertising it or making it available.

This means that you could be charged and liable for the same penalties if you distribute photos or voyeuristic recordings to others while knowing they were obtained by committing voyeurism.

Voyeurism is a hybrid offence, meaning that the Crown can choose to charge a person as either a summary or an indictable offence. The penalties are less severe if the Crown proceeds as a summary offence.

• Summary Offence: On conviction, the accused can be sentenced to six months in jail and a maximum fine of $2,000.
• Indictable Offence: The accused can be sentenced to up to five years imprisonment on conviction.

Depending on the facts of the case, the offender may also be placed on the Sex Offender Registry for ten years.

Common Defences of Voyeurism Offences

To be convicted of voyeurism, the Crown must prove that:

• the observation or recording was done surreptitiously; 
• the offence happened in a place where the complainant had a reasonable expectation of privacy; 
• the observation or recording was done for a sexual purpose. 

There are several defence strategies against voyeurism charges, but they are strongly dependent on the circumstances.

There Was No Reasonable Expectation to Privacy

One critical element of voyeurism is that the complainant must have had a reasonable expectation to privacy, making it a common point of dispute. A 2014 Ontario Court of Justice case serves as a prime example. A woman accused a man of voyeurism at a clothing-optional beach in Toronto. She alleged that he had been taking photos of her without consent and had approached him about this. He agreed to delete her photos, but she called the police and asked to arrest him for voyeurism.

After finding more photos of nude adults on the man’s phone, all taken on the same day, the officer arrested him with an explanation that his behaviour constituted voyeurism as he had taken photos without the subject’s consent and for his sexual gratification. However, the judge dismissed the charge as a nude beach does not give rise to a reasonable expectation of privacy.

Violation of Charter Rights

If the police violated the accused’s rights as per the Canadian Charter of Rights and Freedoms while gathering evidence, such as an illegal search of the accused’s phone or computer, any incriminating evidence found in the unlawful search may be excluded from evidence at trial. Section 8 of the Charter grants every Canadian the right “to be secure against unreasonable search or seizure.”

The Complainant Gave Consent

Consent is another crucial element. If you believed that the person you were taking photos of or recording in a sexual manner gave their consent for you to do so, your voyeurism lawyer could mount this defence.

The Recording Was Not For a Sexual Purpose

If footage of sexual relations was taken without sexual intent, such as a security camera capturing the event, it could be argued that the camera’s placement was not done with sexual intent, and the recording or photos did not rise to the level of criminal voyeurism.

Talk to a Criminal Defence Lawyer

If you have been charged with voyeurism, speak to a criminal defence lawyer today. Farjoud Law has an outstanding track record defending clients charged with all types of criminal offences, including voyeurism. We are dedicated to professionalism, client services and passionate advocacy.

If you or a loved one have been charged with criminal offence, do not hesitate to call Farjoud Law at 647-606-6776 to speak directly to a criminal defence lawyer who personally answers all calls 24 hours a day, 7 days a week or fill out our convenient online form.