Voyeurism is a term used to describe the criminal offence of observing others when they are undressing, naked or engaged in sexual activity without their consent. It typically involves covertly watching individuals unaware that they are being observed, often in private settings such as their homes or other intimate spaces where they can expect a reasonable level of privacy.
Voyeurism can manifest in various forms, including peeping through windows, using hidden cameras or recording devices, or spying on others in public places such as restrooms or changing rooms. Voyeurism is considered a form of sexual misconduct or invasion of privacy and is handled like other criminal sexual offences in Canada.
Voyeurism in Canadian Criminal Law
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.
What is a Reasonable Expectation of Privacy?
In R v Jarvis 2019 SCC, the Supreme Court of Canada determined that people have a reasonable expectation of privacy in an area, location, or circumstance if they do not expect to be secretly recorded or observed.
Relevant considerations to determine whether someone is in a location that gives them a reasonable expectation of privacy include:
- The location the person was in when they were observed or recorded;
- The nature of the voyeurism, for example, whether it consisted of observation or recording;
- Awareness of or consent to potential observation or recording;
- How the observation or recording was done;
- The subject matter or content of the observation or recording;
- Any rules, regulations or policies that governed the observation or recording in question;
- The relationship between the person who was observed or recorded and the person who did the observing or recording;
- The purpose for which the observation or recording was done and
- The personal attributes of the person who was observed or recorded.
The court ruled that this list was non-exhaustive, so each case would depend on the facts relevant to the alleged voyeurism.
Examples of Places Where Someone Would Reasonably Expect Privacy
A person would reasonably expect privacy in the following locations:
- A bathroom
- Bedroom
- Fitting room
- Locker room
- Shower stall
- Toilet stall
Penalties for Voyeurism Charges
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.
Distributing, Printing, and Copying Voyeuristic Recordings in the Criminal Code
Even if you were not the person committing the criminal offence of voyeurism, you could still be charged with the distribution, printing and copying of voyeuristic recordings.
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 even if you did not make the photos or recordings yourself, distributing them to others while knowing they were obtained committing voyeurism constitutes a criminal offence. It is treated as if you committed the voyeurism charge yourself and is subject to the same prosecution and penalties.
Possible Voyeurism Defences
No Reasonable Expectation of Privacy
One of the critical requirements in a voyeurism case is the establishment that the person observed or recorded by the accused had a reasonable expectation of privacy.
A possible defence to voyeurism charges would be if the accused or his or her criminal defence lawyer can prove the person who was observed or recorded was in a location that does not give rise to a reasonable expectation of privacy. For example, the court has ruled a clothing-optional beach is not a place giving rise to a reasonable expectation of privacy (R v Lebenfish 2014 ONCJ).
Recordings Were not for Sexual Purposes
Section 162(1)(c) covers the charge of voyeurism if the person was observed or recorded for sexual purposes.
Defence counsel could argue the observations or recordings were not made for a sexual purpose, but accidental while making recordings for surveillance or the accused was recorded for artistic reasons.
Breach of Charter Rights
A skilled criminal defence lawyer will examine the circumstances of evidence collection and police conduct. If the police illegally obtained evidence of voyeurism on any electronic device or at your home, the argument of a Section 8 Charter rights violation against unreasonable search or seizure could be argued. If this argument is successful, the evidence against you cannot be used at trial. Further, if the illegally obtained evidence was the only evidence against you, the Crown will likely decide your case is not worth pursuing.
Facing a Voyeurism Charge? Speak With Our Criminal Lawyers
If you or someone you know has been charged with voyeurism, you need competent legal counsel by your side. Contact Fedorowicz Law for legal advice. Richard Fedorowicz has over 20 years of experience in criminal defence with a proven track record of success in defending voyeurism charges. He will fully assess any elements of a criminal case that could help the most effective defence for each of his Greater Toronto Area clients.
Call Fedorowicz Law today at 249-266-4222 or fill out our convenient online form to learn how we can help you with your voyeurism defence in Toronto!