With the rise in technology and handheld devices with both visual and audio recording capabilities at our fingertips, privacy can become a bit of a blurry concept.
You may be wondering what exactly your rights are when it comes to your neighbour filming you or whether you could get into serious trouble for filming another person without their consent.
Throughout this article, we will clear up exactly what is meant by voyeurism, the consequences that can arise from recording or filming people who can reasonably be assumed to be nude, partially nude or engaged in sexual activity in a secretive way without their consent and what your defences could potentially be if you get caught in the illegal act of voyeurism.
Video Recording Laws in Canada
Voyeurism in Canada is a serious criminal offence and was added to the Criminal Code in 2005 in order to address concerns relating to the rising use of recording devices such as video cameras, mobile phones and even video surveillance systems. Voyeurism is committed when a person:
According to Canadian Law as stated in the Criminal Code Section. 162(1) …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
- 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;
- 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
- the observation or recording is done for a sexual purpose.
Examples of locations in which a person would have a reasonable expectation of privacy would be a changing room or a washroom.
Filming for a sexual purpose is also always illegal if the person being filmed is in a location where they have a reasonable expectation of privacy.
You may think that if you are engaged in an intimate and private activity with another individual it would not be as serious of a matter to film them.
This is not the case.
It is illegal in Canada to videotape your sexual encounter with someone without his or her consent and is considered to be voyeurism according to section 162.1 of the Criminal Code.
Is It Illegal To Record Someone Without Their Consent
Let’s say you’re working from home and have a Zoom meeting with your boss that you’d like to record without them knowing and are wondering whether you could face consequences for doing so. Section 184 of the Criminal Code states that recording private conversations is illegal unless one of the participants consents to the interception.
Organizations in Canada must comply with the Personal Information Protection and Electronic Documents Act (PIPEDA) whenever they want to record a private conversation. When you hear an automated voice informing you at the beginning of a call that it may be recorded, this is an example of gaining your consent in order to avoid implications.
One Party Consent Canada
As mentioned above, any individual who knowingly intercepts a private conversation that they are not a part of by recording it using a device is guilty of an indictable offence and liable to a term of imprisonment of up to five years or an offence punishable on summary conviction.
Recording private conversations is legal, however, as long as one of the parties involved in the call consents to the recording. This is referred to as the “one party consent” exception. This essentially means that the second individual who is involved in the call does not need to know that the call is being recorded. Even if there are several people on the call, it’s still legal for one of them to record it without informing the others.
If the acts that are alleged to constitute the offence serve the public good and do not extend beyond what serves the public good, the accused will not be convicted of the offence of voyeurism. In other words, if you have been accused of voyeurism, you would need to prove that the audio or visual content serves the public good.
Question Of Law & Motives
The motives of the accused are irrelevant when it comes to voyeurism. Saying that you did not mean to invade a person’s privacy or did not realize that what you were doing was wrong will not carry any weight when it comes to your offence. When it comes to the defence mentioned above, it is a question of law whether an act serves the public good and whether there is evidence that the act alleged goes beyond what serves the public good, but it is a question of fact whether the act does or does not extend beyond what serves the public good.
Questions About Video Voyeurism
Q: Can Someone Record You Without Your Permission in Canada?
A: In Canada, recording private conversations is legal provided one of the participants consents to the recording. This means that if two participants are involved in a call, one of the participants can record the call without informing the other of the recording. Non-participants, however, are not allowed to listen in or record the conversation. In sum, yes, somebody can record you without your permission if they are part of the conversation but not if they are eavesdropping/a non-participant entirely.
Q: Can Somebody Sue Me for Recording Them Without Their Consent?
A: Along with being criminally charged for voyeurism, there is the possibility of being sued civilly for damages. In Jones v Tsige, the Ontario Court of Appeal recognized the tort of “intrusion upon seclusion”. The tort is described as “one who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person”. An individual’s privacy is ultimately recognized by Ontario Courts and you can be sued for damages if it has been violated but only after the circumstances surrounding the event have been carefully considered. This is separate from a criminal charge, and you will have to seek a lawyer familiar in tort law. If you’ve been criminally charged with voyeurism, however, call us today to discuss your legal options.
Q: Can I Film Other People at a Public Beach?
A: In Canada, you can legally film on public property where there is no reasonable expectation of privacy. This would include a public beach. What you cannot do, however, is film individuals at the beach for a public purpose (e.g., zooming in on breast and genital regions).