Voyeurism, or the act of secretly watching or recording a person who is naked for sexual purposes, is a recent addition to the criminal code. It was added in 2005 in response to the invention of new technology that makes recording video and images possible in more ways than ever before. The offence of voyeurism is considered a serious intrusion upon the victim’s privacy, and new technology makes it easier to obtain images.
We’ll discuss the legal definition of the voyeurism Criminal Code of Canada and examine the penalties for voyeurism charges. We’ll also discuss common defences against charges of voyeurism.
What is Voyeurism?
The legal definition of voyeurism is outlined in Section 162 of the Criminal Code of Canada:
(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.
A recording, in this case, means a video, film or photograph made by any means. It is also a crime to publish, print, copy, distribute, circulate, sell or advertise or make the recording available where the person in possession of the recording knows it was secretly obtained, illegally.
Penalties for Voyeurism
Voyeurism is a hybrid offence, and thus there is no mandatory minimum sentence for this sex crime. For a hybrid offence, the prosecutor may proceed either by way of summary conviction or by indictment. If you are found guilty of an indictable offence, the maximum penalty is 5 years in prison. If it is a summary conviction, the maximum penalty is 2 years less a day imprisonment and or a $5000 fine.
If you are convicted of voyeurism, you must also register as a sex offender with the Federal National Sex Offender Registry or NSOR in the province where you live. For a summary conviction, you will be placed on the list for ten years. If you are charged by indictment, the length of time is at least 20 years. You must report any chance of your address to the registry and keep your information up to date or face criminal charges.
What constitutes a “secret recording”?
A secret recording is made when a person observes or makes a recording of someone in a secret or sneaky way in a location where that person had a reasonable expectation of privacy. This includes both public and private settings. Examples include planting a hidden camera in the women’s washroom with a view of the toilet or recording pictures of children in a park with a zoom lens while hiding in a “blind” in a nearby car.
What locations of filming or photographing do people have a reasonable expectation of privacy?
To be convicted of voyeurism, the complainants must have a reasonable expectation of privacy in the location they were recorded. Privacy is not an all-or-nothing concept. And simply because a person is in a public space does not mean they give up all rights to their privacy. That said, there are places where a person could expect to be nude and not recorded, such as a workplace washroom or a clearly marked woman’s shower.
What are the common defences against charges of voyeurism?
Some of the most common defences for voyeurism include:
- The recording was made for the public good. Sometimes police officers who are using surveillance on individuals may make recordings where individuals are unaware they are being recorded and appear nude. As long as the recording serves the public good and does not extend beyond that, they cannot be convicted of voyeurism.
- The recording was not made surreptitiously – If you can establish that the recording was not done in secret and was out in the open, or the person was in a place where they did not have a reasonable expectation of privacy.
- You did not intend to capture the image for a sexual purpose or did not expect there to be nudity.
Your criminal defence lawyer will work with your case to find the best defence. They may obtain additional evidence to prove your claims or find witnesses who can testify on your behalf.
If you or a family member are facing charges of voyeurism, you need an experienced lawyer to help you negotiate the charges and get you the best outcome in court. William Jaksa has over ten years of experience as a criminal defence lawyer in Toronto. Talk to William Jaksa today for a consultation on your case.