Voyeurism

Voyeurism is a criminal offence under s. 162 of the Criminal Code of Canada. Section 162 criminalizes secretly watching, or recording, an individual in a variety of situations or for a sexual purpose. Subsection 162(4) of the Criminal Code also prohibits printing, copying, publishing, distributing, circulating, selling, or advertising any voyeuristic recording, or possessing the recording for the purpose of doing one of those acts.

What is Voyeurism

The offence of Voyeurism can be committed in a number of ways, either by personal observation (including using a mechanical or electronic device) or by means of a visual recording. In all cases, the action must be done "surreptitiously" (secretly) and in a context where the alleged victim has a reasonable expectation of privacy.

In circumstances giving rise to a reasonable expectation of privacy:

• It is illegal to secretly watch or record someone naked, exposing their genitals, their anal region, or their breasts, or while engaging in explicit sexual acts, if that recording or observation is done with the intent to observe or record someone in that state or engaged in that activity.
• It is illegal to secretly watch or record someone in a place where they can reasonably be expected to be naked, expose their genitals, their anal region, or their breasts, or engaging in explicit sexual acts.
• It is illegal to secretly watch or record someone for a sexual purpose.

The following acts have been found to be examples of criminal voyeurism:

• Secretly filming someone's chest and cleavage while having conversations with them at a school.
• Secretly taking a photograph while engaging in a sexual video chat in the context of a long-distance relationship.
• Secretly filming an someone in the bathroom.
• Secretly filming a couple in a guest bedroom.
• Secretly filming a partner during sex.
• Secretly recording people in a park for a sexual purpose.

Possible Penalties if Convicted of Voyeurism

Section 162 of the Criminal Code is a hybrid offence, meaning the Crown can elect to proceed by summary conviction or by indictment. The potential penalties are as follows:

• If the Crown proceeds by summary conviction: the maximum punishment is a fine of not more than $5000 or a term of imprisonment of not more than two years less a day, or both.
• If the Crown proceeds by indictment: the maximum punishment is five years imprisonment.

Defences Available for Voyeurism

As in every case, the defences that may be available to you depend on the specific facts of your case.

The following list includes defences that may be available in a Voyeurism case:

• Public Good: Under subsection 162(6) of the Criminal Code, no one shall be convicted of Voyeurism if the act alleged served the public good and did not extend beyond what serves the public good. Under subsection 162(7)(b), the motives of the accused are irrelevant to this defence.
• Factual Innocence: If the Crown is unable to prove the following elements beyond a reasonable doubt, they will have failed to discharge their burden:
  • the identity of the offender;
  • the date and time of the incident and jurisdiction;
  • that the accused observed or made a video recording of another person;
  • that the observation and/or recording was done "surreptitiously";
  • that the observed person had a reasonable expectation of privacy;
  • And that:
    1. The observed person is in a place in which a person can reasonably be expected to:
       • Be nude;
       • Expose their genitals, anal region, or breasts; or
       • Be engaged in explicit sexual activity;
    2. Both:
       • The observed person is:
         • Nude
         • Exposing their genitals, anal region, or breasts; or
         • 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
    3. The observation or recording was for a sexual purpose.

• Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:
  • the right against unreasonable search and seizure;
  • the right to not be arbitrarily detained;
  • the right to be informed promptly of the reasons for arrest;
  • the right to retain and instruct counsel without delay; and
  • the right to be tried within a reasonable time.

A successful Charter challenge may also result in a stay of proceedings, or evidence from your case being excluded.

Alternative Outcomes

In some instances, it is possible that your charge(s) may be resolved without going to trial or pleading guilty. The availability of these alternative outcomes depends on a number of factors; each case is fact-specific. The following is a list of examples of alternative outcomes in a criminal case:

• Withdrawal of Charge(s): The Crown may decide to withdraw a defendant's charge(s) where:
  • The Crown does not believe they have a reasonable prospect of conviction at trial, due to various reasons; or
  • It is not in the public interest to prosecute.

• Stay of Proceedings: A stay of proceedings effectively stops a legal proceeding in its tracks, and is a rarely granted remedy. The difference between a stay of proceedings and a withdrawal is that, with a stay of proceedings, the Crown may decide to continue the proceedings at a later date.

• Diversion: Diversion (often referred to as "Direct Accountability" or "DAP") is an alternative way of resolving charges in the criminal justice system, and provides offenders with an opportunity to take accountability for their actions without incurring a criminal record. Diversion is usually reserved for minor offences and first-time offenders. To successfully complete a diversion program involves some form of upfront work by the defendant, including but not limited to:

• • A written apology letter;
  • Charitable donation(s);
  • Community service/volunteer hours;
  • Counselling and/or programming; and
  • Restitution/compensation.

Next Steps

The information above provides a general overview of the offence of Voyeurism, as well as potential penalties and defences. However, no two cases are alike. Every criminal case is fact-specific and ranges in complexity, depending on the issues at play.

Charged with Voyeurism? Contact our office today at 416-924-5969 to learn more about how we can help you. Our team of lawyers is prepared to conduct a thorough review of your situation and develop an approach that is tailored to your needs. Obtaining proper legal representation is the first step in preparing a successful defence.