Key Takeaways
- Voyeurism is a criminal offence in Canada when conducted secretly, without consent, and for sexual purposes.
- Convictions can result in up to 5 years imprisonment and mandatory inclusion on the National Sex Offender Registry (NSOR).
- Canadian courts consider voyeurism both a privacy violation and a sexual offence, with context and reasonable expectations of privacy being critical.
- Defence strategies often focus on a lack of privacy expectation, absence of surreptitious conduct, or lack of sexual intent.
- Digital technologies have significantly increased the incidence and complexity of voyeurism cases in recent years.
Table of Contents
- Understanding Voyeurism Under Canadian Law
- Limitations of the Current Law
- What Constitutes “Surreptitious” Observation or Recording?
- Conceptualizing Voyeurism: Privacy vs Sexual Offence
- What the Crown Must Prove
- Defence Strategies in Voyeurism Cases
- Sentences and Legal Consequences
- Trends in Voyeurism Cases (2025)
- Contact Vilkhov Law
Understanding Voyeurism Under Canadian Law
Voyeurism, as defined by Section 162 of the Criminal Code of Canada, occurs when a person:
- Surreptitiously observes or records another individual, using mechanical or electronic means;
- In a situation where the observed person has a reasonable expectation of privacy, and the observation or recording is made for a sexual purpose or involves nudity or sexual activity.
- The observation involves nudity, sexual activity, or is motivated by sexual purpose.
Examples of voyeuristic behaviour include
- Secretly filming someone undressing in their bedroom;
- Using a hidden camera in a bathroom or changing room;
- Covertly photographing someone sunbathing, with the intent to capture sexualized images.
Courts now interpret “reasonable expectation of privacy” more broadly, taking into account the concept of freedom from unwanted scrutiny, not just physical location. This shift follows the precedent-setting case R. v. Jarvis (2019 SCC 10).
Limitations of the Current Law
Despite being codified in 2005, the voyeurism statute has inherent ambiguities:
- Reasonable expectation of privacy: Originally confined to bedrooms, bathrooms, and changing rooms, the interpretation has expanded to include contextual privacy, as demonstrated in the Jarvis case, where a teacher filmed students in a classroom.
- Sexual purpose: Determining sexual intent is inherently subjective. Courts use the “reasonable person” standard to assess whether an act would reasonably be perceived as sexual.
- Technological challenges: Modern devices (smartphones, hidden cameras, drones) complicate proving surreptitiousness and sexual intent.
Impact of these limitations
- Defendants can challenge charges by questioning whether a reasonable expectation of privacy existed or whether the alleged act was truly for sexual gratification.
- Courts must balance individual rights against public safety, making each case highly context-dependent.
What Constitutes “Surreptitious” Observation or Recording?
Section 162 does not define “surreptitiously,” but Canadian courts have clarified it through precedent:
- Hidden cameras and concealed observers in private spaces generally meet the standard.
- The observation must be covert, not incidental.
- Context matters: The Jarvis case extended privacy rights beyond traditional private spaces, emphasizing personal autonomy and freedom from unwanted attention.
Illustrative example
A teacher used a pen camera to record students’ upper bodies and clothed breasts in a classroom. Despite classrooms not traditionally being private, the Supreme Court upheld a privacy breach due to contextual expectations of personal autonomy.
Conceptualizing Voyeurism: Privacy vs Sexual Offence
As a Privacy Breach
Voyeurism is inherently a privacy violation:
- Private locations, such as bathrooms, bedrooms, and changing rooms, still constitute clear expectations of privacy.
- Contextual factors, per the Jarvis ruling, influence privacy determination:
Contextual Factors Considered by Courts
- Location of the person
- Nature of conduct (observation vs recording)
- Awareness or consent
- Method of observation or recording
- Subject matter
- Relevant rules, policies, or regulations
- Relationship between parties
- Purpose of observation
- Personal attributes of the person observed
New: These factors are not exhaustive; courts apply them flexibly depending on the situation.
As a Sexual Offence
- Sexual purpose is determined by whether a reasonable person would interpret the offender’s actions as sexual.
- Even when individuals are clothed, covert recording may constitute sexual violation if the intent was for sexual gratification.
- Courts may consider behavioural context, prior conduct, and evidence from devices (e.g., search histories) to assess intent.
Intersection: Privacy + Sexual Offence
Public acts can still be voyeuristic if done covertly for sexual purposes:
- Example: Using drones or telephoto lenses to capture upskirt or bikini photos.
- Example: Recording someone breastfeeding in public without consent.
Takeaway: Voyeurism often occupies a hybrid space between privacy and sexual offence, complicating legal interpretation.
What the Crown Must Prove
The prosecution must demonstrate beyond a reasonable doubt:
| Element | Description | Examples |
|---|---|---|
| Reasonable expectation of privacy | The victim could reasonably expect privacy | Bathrooms, bedrooms, changing rooms, classrooms (Jarvis) |
| Surreptitious observation or recording | The act was covert or hidden | Hidden cameras, concealed devices |
| Sexual purpose | Act motivated by sexual gratification | Secret filming or photographing for sexual use |
Defence Strategies in Voyeurism Cases
1. No Reasonable Expectation of Privacy
- Specific contexts exclude privacy rights: nude beaches, public performances, communal changing areas.
- Example: R. v. Lebenfish (2014 ONCJ 130) — charges dismissed because the victim was on a public nude beach where photography was allowed.
2. Offence Was Not Surreptitious
- Defence may argue that observation was open or incidental, undermining surreptitiousness.
- Even in public, secretive intent must be proven.
3. Recording Was Not for Sexual Purposes
- Sexual intent is subjective.
- Defence can question evidence of sexual motivation, highlighting alternative explanations (e.g., educational, journalistic, or security purposes).
4. Charter Rights Violations
- Section 8 Charter violations regarding searches and seizures can result in evidence being excluded, potentially causing charges to be withdrawn.
- Skilled defence lawyers carefully review all police procedures and device seizures.
Sentences and Legal Consequences
Voyeurism is a hybrid offence
| Charge Type | Maximum Penalty | Notes |
|---|---|---|
| Indictable | 5 years imprisonment | Serious violations, e.g., filming minors |
| Summary | 2 years minus 1 day | Less severe cases, e.g., peeping neighbours |
Other consequences
- Criminal record
- Mandatory inclusion in the National Sex Offender Registry (NSOR)
- Long-term impact on employment, travel, and personal reputation
New: Crown prosecutors consider context when deciding charge type:
- Minor incidents → often summary; negotiation possible
- Severe incidents (children, repeated offences) → indictable; negotiation less likely
Trends in Voyeurism Cases (2025)
Cases have grown with digital camera proliferation:
| Year | Canada-wide Cases | Ontario Cases |
|---|---|---|
| 2006 | 69 | 21 |
| 2012 | 643 | 255 |
| 2020 | 1,200 | 487 |
| 2022 | 1,022 | 351 |
| 2025* | 1,150 (est.) | 370 (est.) |
New estimates account for digital device usage, social media, and mobile technology.
Courts now consider contextual privacy over purely location-based privacy.
“Voyeurism charges are serious because they strike at both personal privacy and sexual integrity. Even acts that may appear minor can have lasting consequences. Anyone facing these allegations must secure skilled legal counsel immediately to protect their rights and achieve the best possible outcome.”
— Joel Prajs, Criminal Defence Lawyer
Contact Vilkhov Law
Given the serious consequences of voyeurism charges, it is essential to seek professional legal representation. Vilkhov Law provides confidential consultations across Ontario:
Facing voyeurism charges can have serious legal, personal, and professional consequences. It is crucial to seek experienced criminal defence counsel who understands Ontario’s legal system and can protect your rights at every stage.
At Vilkhov Law, our team of skilled lawyers offers:
- Confidential consultations: Every discussion is private, ensuring you can share all details openly.
- Case evaluation: We assess the specifics of your situation, identify potential defences, and outline realistic outcomes.
- Strategic defence planning: Our lawyers develop a tailored approach, whether negotiating a plea bargain or preparing for trial.
- Experienced representation across Ontario: We handle cases throughout Toronto and the Greater Toronto Area, providing professional guidance no matter where you are.
- Support throughout the legal process: From initial hearings to potential sentencing, we advocate for your rights and work to minimize long-term consequences.
Contact us today for a free and confidential consultation to discuss your case and understand your options. Taking action early can significantly improve your chances of a favourable outcome.
