Voyeurism Law in Canada – Understanding Voyeurism Charges

Depending on the circumstances of your case, a lack of a reasonable expectation of privacy or a breach of your Charter rights are possible defences to voyeurism charges. Voyeurism is a serious criminal offence, and an accused’s reputation, personal life, and employment prospects can be irreparably damaged. Voyeurism is an offence punishable for up to five years in jail. Additionally, an accused found guilty of voyeurism might be placed on Canada’s sexual offender registry. This article will examine what voyeurism is under the Criminal Code, examples of voyeurism, the penalties for voyeurism, and what to do if you are charged with voyeurism. Lastly, possible defences for voyeurism will be examined.

Contact an experienced criminal lawyer at Pyzer Criminal Lawyers if you are facing allegations of voyeurism. Call us today to schedule a free consultation. We will vigorously advocate for you every step of the way.  

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Is Voyeurism a Crime in Canada?

Voyeurism has been a crime in Canada since 2005 when the government added the offence to the Criminal Codeto address concerns relating to the rising use of recording devices. Specifically, the government made voyeurism a crime “to protect individuals’ privacy and sexual integrity, particularly from new threats posed by the abuse of evolving technologies.” (R v Jarvis 2019 SCC)

Voyeurism is committed when a person:

S. 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.

In other words, the first part of voyeurism occurs when a person:

• Secretly observed or makes;
• A visual recording of a person;
• In a location they would reasonably expect privacy, if…

Next, to be fully charged with voyeurism, sections a, b, and c have different criteria. For example, consider Person A is the alleged voyeur, and Person B is the person being secretly watched:

Distributing, Printing, Copying Voyeuristic Recordings in the Criminal Code

It is also a crime under section 162(4) of the Criminal Code for a person to print, copy, publish, distribute, circulate, sell, advertise or make the recording available, if the person knew that the recording was obtained by an act of voyeurism. Further, having the recording in possession for the purpose of printing, copying, publishing, distributing, circulating, selling or advertising it or making it available is also a crime. In other words, a person who receives voyeuristic images or videos and forwards them to other people also commits a criminal offence. Section 162(4) is considered the most serious voyeurism offence because it involves distributing images or videos that were obtained by voyeurism.

What is Meant by a Secret Recording?

To recap, the first essential element of voyeurism is:

• Surreptitiously observing or making,
• A visual recording of a person,
• In a location they would reasonably expect privacy.

“Surreptitiously” means secretive, clandestine, or unnoticed (R v Pall 2017 ONSC). For example, if an accused is hiding, or has installed a small camera to observe or record people engaged in explicit sexual activity, or to observe or record a person’s genital organs or anal region, they can be accused of voyeurism. A visual recording

Definition of “Visual Recording”

Under the Criminal Code, a visual recording includes secretly making a “visual recording” of a person who expects reasonable privacy under the circumstances. The Criminal Code specifies in section 162(2) that a “visual recording” means any “photographic, film or video recording made by any means.” In other words, a visual recording includes recordings made with cell phones, surveillance cameras, personal computers, or any other device that has the ability to record.

What is Meant by a Secret Recording?

Canadian cases where the accused was found guilty of voyeurism:

• Placing a camera in the ceiling of the male staff bathroom (R v B.H. 2017 ONCJ)
• Secretly recording persons in the restroom of a restaurant (R v Bosomworth 2015 BCPC)
• Filming multiple people in multiple public washrooms, including home washroom (R v Dekker 2014 ABPC)
• An obsession with a victim led an accused to spy on her at work, including while she was in the shower, and recording her while she was in the shower (R v Brandt 2013 MBPC)
• Recording a 15-year-old stepdaughter undressing in her room (R v A. (M.S.) 2013 ABPC)
• Taking pictures up a female’s skirt (R v Rocha 2012 ABPC)
• Recording a roommate and the roommate’s girlfriend having sex (R v Pan 2012 ABPC)
• Making videos of sexual activity between accused and accused’s partner without consent, posting the videos on Facebook, and sending links of the video to friends (R v Desilva 2011 ONCJ)

What is a Reasonable Expectation of Privacy?

The Supreme Court of Canada determined that people have a reasonable expectation of privacy in an area, location, or circumstance if the person does not expect to be secretly recorded or observed (R v Jarvis 2019 SCC).

To determine whether someone is in a location that gives rise to a reasonable expectation of privacy, the Supreme Court determined that the entire context of the alleged voyeurism has to be considered. Relevant considerations may 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 said this list was non-exhaustive, so each case will depend on the specific facts relevant to the alleged voyeurism.

What Locations Will Create a Reasonable Expectation of Privacy?

Almost all locations where a person can reasonably expect to be nude create a reasonable expectation of privacy, including:

• Changing rooms
• A bathroom
• Toilet stall
• Shower stall
• Bedroom
• Almost everywhere around your personal property

However, a reasonable expectation of privacy is not determined solely by the location where the person or people were observed or recorded. In recent court decisions, the following scenarios were considered to have a reasonable expectation of privacy:

• “Virtual space”, or over a private video call: Accused and complainant were in a long-distance relationship and would sometimes both appear naked during their video calls. The accused secretly took screenshots of the complainant, and allegedly emailed the complainant’s provocative photos to multiple people. The court determined the complainant was “entitled to reasonably expect that the accused would not record their sexual activities in “virtual space” without her consent.” (R v Trinchi 2019 ONCA)

• At school: accused was a teacher at a high school who secretly recorded female students in the public school area, predominantly focusing on the student’s breasts. (R v Jarvis, 2019 SCC).

Keep in mind, however, that the outcome of your case will depend on the specific facts of the allegations against you, which will likely differ from the above examples. Further, courts have been directed to consider the whole context of an alleged voyeurism offence. If you have been accused of voyeurism, contact a criminal defence lawyer right away. Pyzer Criminal Lawyers are experts in criminal law and will help you with the court process and determine the best defences possible for your case.

What is the Penalty for Voyeurism in Canada?

The Criminal Code states voyeurism is an offence punishable to a jail sentence for up to five years if the Crown proceeds by indictment. If the Crown proceeds by summary conviction, the accused will face less jail time and/or a fine. Generally, the Crown will proceed by indictment if the voyeurism allegation is severe. For example, if the alleged voyeurism occured in a context of child pornography or other sexual offences such as sexual assault, the Crown would likely proceed by indictment. On the other hand, if the circumstances surrounding the voyeurism are less severe, the Crown may proceed by way of summary conviction. Regardless of whether the Crown proceeds by indictment or summary conviction, a guilty finding of voyeurism will be on the accused’s criminal record. Having a criminal record is permanent and can and will significantly affect an accused’s life, for example in employment or travel opportunities. An accused may apply for a pardon so that future employers will not be able to see their record, but all law enforcement and government agencies will still have access.

What Happens if you are Charged with Voyeurism?

What will happen between an arrest and a potential trial takes on many forms. The Crown will be building a case against you, and you will either be allowed in the community on bail while your case goes through the court system, or you will remain in jail. If you are charged with voyeurism, contact a defence lawyer right away. Pyzer Criminal Lawyers will vigorously help you defend your charges.

What Does the Crown Have to Prove?

The Crown has to prove an accused committed voyeurism beyond a reasonable doubt. The elements that the Crown has to prove will be different depending on the exact charge, for example, whether the accused was charged under subsections a, b, or c. In every voyeurism case, however, the Crown first has to prove the accused was secretly recording or observing a person who had a reasonable expectation of privacy.

If the Crown proceeds by way of indictment, the accused faces up to five years in jail, and will likely have to register on Canada’s Sex Offender Information Registry Act.

Getting Placed on the Sexual Offender Registry

If the Crown can prove beyond a reasonable doubt that while committing voyeurism, the accused also intended to commit a specific sexual offences under the Criminal Code, the accused will be placed on the Sex Offender Information Registry Act for ten years. For example, sexual offences include child pornography, sexual exploitation, obscenity, and sexual assault. The implications of being on the sex offender registry can be even more detrimental to the accused after they are found guilty of voyeurism.

Under section 5 of the Sex Offender Information Registry Act, an accused has to provide the following information:

• (a) their given name and surname, and every alias that they use;
• (b) their date of birth and gender;
• (c) the address of their main residence and every secondary residence or, if there is no such address, the location of that place;
• (d) the address of every place at which they are employed or retained or are engaged on a volunteer basis (or, if there is no address, the location of that place), the name of their employer or the person who engages them on a volunteer basis or retains them and the type of work that they do there;
• (d.1) if applicable, their status as an officer or a non-commissioned member of the Canadian Forces within the meaning of subsection 2(1) of the National Defence Act and the address and telephone number of their unit within the meaning of that subsection;
• (e) the address of every educational institution at which they are enrolled or, if there is no such address, the location of that place;
• (f) a telephone number at which they may be reached, if any, for every place referred to in paragraphs (c) and (d), and the number of every mobile telephone or pager in their possession;
• (g) their height and weight and a description of every physical distinguishing mark that they have;
• (h) the licence plate number, make, model, body type, year of manufacture and colour of the motor vehicles that are registered in their name or that they use regularly;
• (i) the licence number and the name of the issuing jurisdiction of every driver’s licence that they hold; and
• (j) the passport number and the name of the issuing jurisdiction of every passport that they hold.

Possible Voyeurism Defences

No Reasonable Expectation of Privacy

One of the core requirements to be found guilty of voyeurism is that the accused observed or recorded someone who had a reasonable expectation of privacy.

To defend voyeurism charges, if the accused can prove the person who was recorded or observed was in a location that does not give rise to a reasonable expectation of privacy, they will not be found guilty. For example, the courts considered a case where the accused allegedly took photos of women at a clothing optional beach. Ultimately, the accused was acquitted because the court found a nude public beach did not give rise to a reasonable expectation of privacy (R v Lebenfish 2014 ONCJ).

Recordings Were not for Sexual Purposes

If an individual is charged with voyeurism under section 162(1)(c), the Crown needs to prove the accused is secretly observed or recorded for a sexual purpose. Therefore, a possible defence would be to argue that the recordings or observations were not for a sexual purpose. For instance, a video could have been made in the context of surveillance and the recording of a person was accidental. Additionally, it may be possible that the accused was recording for artistic reasons and lacked the intent to film an unsuspecting victim.

Breach of Charter Rights

Depending on the circumstances of your case, another effective defence against voyeurism would be to argue that the evidence against you was obtained in a manner that infringes your constitutional rights. For example, if the police illegally obtained evidence of voyeurism on your phone, computer, or in your home, you can argue that your section 8 Charter right against unreasonable search or seizure is violated. 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.

Voyeurism Defences are Complex.

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Contact an Experienced Criminal Defence Lawyer

Pyzer Criminal Lawyers have the experience and expertise necessary to fight voyeurism allegations. If you have been accused of voyeurism, or think you are being investigated by the police for any criminal charges, you will need competent legal counsel. Contact us. We will help explain your charges and determine the best legal defence.