Is Voyeurism Considered a Criminal Offence in Canada?

Table of contents:

  • Sentences for Voyeurism in Canada
  • People who derive sexual gratification by observing others in the nude or engaging in sexual activity are known as voyeurs. A voyeur’s act is not unlawful if those being observed consent to the viewing – however, when voyeurism is conducted secretly without the knowledge of the observed, Canadian law considers it a criminal offence with a maximum sentence of five years imprisonment.

    As a sexual offence, a conviction for voyeurism can also result in mandatory inclusion on the National Sex Offender Registry (NSOR). Under Canadian law, voyeurism also applies to observation conducted by “mechanical or electronic means” and any applicable visual recording.

    With the proliferation of digital cameras over the past two decades, the number of voyeurism cases investigated by police in Ontario and across Canada has grown significantly. According to the federal government’s “incident-based crime statistics by detailed violations,” Canadian police investigated 1,022 reports of voyeurism in 2022. In 2006, one year after legislators codified voyeurism charges in Canada’s Criminal Code, police only investigated 69 cases, a number that jumped to 643 by 2012 and then almost doubled by 2020 (cases slightly declined in the succeeding years apparently due to the global COVId-19 pandemic).

    In Ontario, case number growth has been equally dramatic. Ontario police investigated 21 cases in 2006, 255 in 2012, 487 in 2019, and 351 in 2022.

    The proliferation of digital cameras has also driven Canadian courts to re-assess what constitutes as reasonable expectation of privacy in the context of voyeurism law.

    What Is Voyeurism Under the Law?

    Section 162 of Canada’s Criminal Code defines voyeurism as an act carried out by anyone who “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:

    • “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.”

    Limitations of the Current Law

    As with many laws listed in the Code, the voyeurism statute has inherent limitations due to the subjective nature of its language. For example, how should the courts define “reasonable expectations of privacy,” or what metrics should be used to determine whether or not the alleged voyeurism was motivated by sexual purpose?

    In the first example, courts initially interpreted privacy on a narrow, location-specific basis to cover places such as bedrooms, bathrooms, showers, and changing rooms. However, the Supreme Court of Canada significantly expanded the interpretation in its precedent-setting 2019 decision in R. V Jarvis 2019 SCC 10. The court held that privacy includes the “concept of freedom from unwanted scrutiny, intrusion, or attention.” This allowed for the conviction of a teacher who had been secretly recording his students’ faces, clothed breasts, and upper bodies in class.

    However, the decision has created an open-ended and more subjective definition for one of the critical factors needed for a voyeurism conviction.

    To subjectively determine whether the alleged voyeurism was motivated by sexual purpose, the courts ruled that it should be based on a “reasonable” person’s objective assessment of the alleged voyeur’s observation or recording whether or not it should be perceived as sexual in motivation. Without clear evidence of sexual purpose, it will come down to a subjective opinion despite the judicial call for objectivity.

    What Can Be Considered a “Surreptitious” Observation or Recording?

    According to Section 162’s language, a “visual recording includes a photographic, film, or video recording made by any means.” The Code’s language does not define “surreptitiously.” Still, courts have considered concealed cameras and/or hidden observers in bathrooms, bedrooms, or other areas where someone should reasonably be able to expect privacy as being surreptitious.

    In the high court’s Jarvis decision, the offender had used a hidden pen camera to photograph his students in the classroom. While classrooms had not previously been considered a location that conferred a reasonable expectation of privacy, the high court held that privacy must be considered in a contextual framework rather than location-specific.

    Conceptualizing a Voyeurism Offence

    In light of the Jarvis decision, voyeurism must be considered from both a privacy breach and a sexual offence context. Indeed, in their judgment, the high court justices opined that legislators intended the voyeurism statute to be “both a sexual and privacy-based offence.”

    As a privacy breach

    Specific locations such as bathrooms, bedrooms, changing rooms, and similar spaces retain their location-centric consideration of having a reasonable expectation of privacy. For the purposes of the law, secretly observing or recording people in such locations constitutes as voyeurism, providing any of the conditions laid out in Section 162 (1) are in play – that is, nudity, sexual activity, or that the alleged offender is motivated by sexual purpose.

    The Jarvis decision expanded their reasonable expectation of privacy to include the “concept of freedom from unwanted scrutiny, intrusion, or attention.” To determine whether a reasonable expectation to privacy exists in relation to voyeurism law, the justices listed nine contextual factors courts could assess. These factors are not exhaustive, and need not all be present in a given situation to determine the right to privacy. These contextual factors include:

    • Location of the person when observed or recorded.
    • Nature of impugned conduct (whether observation or recording, with recording deemed more intrusive).
    • Awareness of or consent to potential observation or recording.
    • How the observation or recording was conducted.
    • Subject matter or content that was observed or recorded.
    • Any rules, regulations, or policies that may have governed observation or recording.
    • Relationship between the parties.
    • The purpose for which the observation or recording was done.
    • Personal attributes of the person who was observed or recorded.

    As a sexual offence

    The Jarvis ruling clarified the reasonable expectation of privacy under the voyeurism law by making it fluid depending upon the context of the situation.

    The high court justices did not have to address the sexual purpose of the alleged privacy, since the lower court had determined that the teacher made the recordings for a sexual purpose. However, in their decision, justices distinctly linked the reasonable expectation of privacy with personal autonomy and sexual integrity.

    Common ground: Intersection of a privacy offence and a sexual offence

    As noted in the Jarvis decision, an “ordinary understanding of the concept of privacy recognizes that a person may be in circumstances where she can expect to be the subject of certain types of observation or recording but not be subject to other types.”

    For example, someone lying on a blanket in a public park or sunbathing at a swimming pool can expect to be observed by others or be incidentally included in other’s photographs. Privacy would be breached — and voyeurism committed — by someone using a telephoto lens to take up-the-skirt or bikini shots or by someone using a drone to take high-resolution photos. Likewise, this would also be the case with someone who captures upskirt images of women or a covert video recording of a woman breastfeeding in the corner of a coffee shop.

    What the Crown Must Prove

    To secure a voyeurism conviction, the Crown must prove three elements of their case “beyond a reasonable doubt. These elements are:

    • The victim possessed a reasonable expectation of privacy.
    • The observation or recording was covert.
    • The alleged offender was motivated by sexual purpose.

    What Are the Available Defence Strategies Against Voyeurism?

    During trial, a competent sexual assault lawyer will strive to raise reasonable doubts about the Crown’s narrative and evidence supporting these three elements of its case:

    There Could Be No Reasonable Expectations of Privacy

    Everyone is entitled to freedom from unwanted scrutiny, intrusion, or attention, but many circumstances exclude privacy. For example, someone cannot reasonably expect privacy while on a nude beach, or in similar situations.

    In its R. v. Lebenfish 2014 ONCJ 130 decision, the Ontario Court of Justice dismissed charges against a man who took photos of a woman on a Toronto nude beach. The court determined that the alleged victim could not reasonably exclude being photographed while sunbathing on the nude beach, where photography was not expressly prohibited.

    The Alleged Offence Was Not Committed Surreptitiously

    While the Jarvis decision inherently subsumed the importance of proving in court that alleged voyeurism was conducted surreptitiously, an effective defence lawyer will be sure that the element is still raised in court. Legal pundits have deemed Jarvis an enhancement of people’s protection against would-be voyeurs in public places; however, the lack of surreptitiousness remains a valid argument.

    The Recording Was Not for Sexual Purposes

    In most cases, determining the “purpose” of alleged voyeurism is a subjective exercise, as it’s in the mind of the purported voyeur.

    This subjectivity provides the defence with plenty of options for raising reasonable doubts. While the Crown might argue that the context of the incident suggests sexual purpose, indisputably proving it is often a different matter.

    Charter Rights Violations Are Always in Play

    Skilled sexual assault defence lawyers will always examine police conduct and evidence collection to determine whether or not they violated the suspect’s Charter Rights. Police violations of Section 8 Charter Rights concerning search and seizure can lead to excluding evidence from trial and the likely withdrawal of charges.

    Sentences for Voyeurism in Canada

    As a hybrid offence, the Crown can charge cases in court as either an indictable or summary conviction offence. When set as an indictable offence, the maximum sentence is five years imprisonment, while a summary conviction offence carries a maximum penalty of two years imprisonment, minus one day.

    Whatever the type of charge, a conviction results in a criminal record, and likely registration with the National Sex Offender Registry.

    The apparent severity of the offence usually dictates the Crown’s decision on how to lay the charges. For example, a person charged with peeking at his female neighbour while she undresses would likely be charged summarily, with more lenient penalties. For such offences, prosecutors may be more open to reducing the charges or agreeing to other arrangements, such as pre-trial diversion.

    On the other hand, the Crown would be more likely to lay charges as an indictable offence on someone arrested for secretly videotaping children using the bathroom. In such cases, Crown prosecutors are usually less open to negotiating a settlement.

    Given the gravity of a voyeurism conviction in Canada, facing these charges on your own is never a good idea. Luckily, an experienced Toronto-based sexual assault lawyer can help strategize an effective defence to secure the most favourable outcome possible.

    If you have been accused of voyeurism in Ontario, don’t hesitate to contact our team at Vilkhov Law today for a free and confidential consultation about your case.

    If you need legal support, contact Vilkhov Law for a free consultation:

    Toronto Criminal Lawyers
    Etobicoke Criminal Lawyers
    Scarborough Criminal Lawyers
    Newmarket Criminal Lawyers
    Brampton Criminal Lawyers
    Mississauga Criminal Lawyers

    By |2023-09-29T18:20:37+00:00September 29th, 2023|Sexual Assault|

    5/5 - (5 votes)

    Criminal Lawyers Association
    Toronnto Lawyers Association
    Law Society of Ontario
    Criminal Lawyers Association
    Toronnto Lawyers Association
    Law Society of Ontario
    Excellent4.9 Based on 132 reviews fromYsabel AtienzaYsabel Atienza ★★★★★ Igor displays a level of professionalism, knowledge and dedication that puts his clients at ease during a very stressful time. His expertise in criminal law is unparalleled. What sets him apart is his unwavering commitment to his clients. He genuinely cares about his clients’ well-being and will go above and beyond for you!Kevin DKevin D ★★★★★ Igor is a great lawyer and has provided valuable guidance throughout my experience with him. He has always been honest and straightforward which I appreciate very much. I would recommend him to anyone looking for a successful outcome.Narmatha SNarmatha S ★★★★★ Igor is a dedicated and intelligent lawyer, known for his commitment to his clients.I've witnessed firsthand his incredible work ethic and professionalism, which sets a high standard in the legal field. His ability to meticulously research cases and articulate arguments convincingly is truly impressive!Fred BalmerFred Balmer ★★★★★ Experience with Vilkhov Law was great, Igor made all my charges get dropped without any issues. I would highly recommend this firm to everyoneDavinder GillDavinder Gill ★★★★★ Ecem KokEcem Kok ★★★★★ My experience with Vilkhov Law was nothing short of exceptional. Facing a daunting legal battle, looking at significant jail time and scared, I sought Igor Vilkhov's expertise based on his stellar reputation in criminal law. From the initial consultation to the trial, every step was handled with precision and care. His deep knowledge of the law and strategic approach gave me confidence throughout.In a pivotal moment during my case, Igor Vilkhov's dedication and expertise truly shone through, resulting in a favorable outcome that exceeded my expectations. His communication was clear and timely, keeping me informed and reassured at every turn.I am immensely grateful to Igor Vilkhov and the entire team at Vilkhov Law for his unwavering support and tireless effort. His professionalism and commitment are second to none. If you find yourself in need of expert legal representation, look no further than Vilkhov Law. He is simply the best.Rhea OXXORhea OXXO ★★★★★ Jessie TeixeiraJessie Teixeira ★★★★★ I would like to thank Igor Vilkhov and his dedicated team for their professional assistance in dealing with my matter. I could not be happier about the way my matter was handled and am very satisfied with the result.Annabella FusaroAnnabella Fusaro ★★★★★ Igor Vilkhov was an amazing Lawyer. I met him through one of his colleagues and one thing I can say he fights for your rights and he doesn’t amazing job. He was so patient and kind with me. I’m very grateful for the outcome of my case. May god bless Igor And the amazing work he does.AnnabellaXuan LinXuan Lin ★★★★★ Hello my name is Leon I got charged with SA in 2021 in relation to a young complainant. I have been looking about 10 lawyer all of then is bad and lie all they care is money never help my case .Until I meet Igor I told him what happened he told me no worry he will try his best for help me . And this year May I won the case I just can't believe it Igor is best lawyer he is legendary . Guy you should believe in Igor he is really good. His preparation was meticulous and was acquitted. He saved my life.ChrisChris ★★★★★ The Best Lawyer In my opinion. A legal Tactician in the modern day criminal justice court systems. Very professional service. Great Techniques and Extremely knowledgable and Highly talented and recommended team.I’m 37 old Newfoundlander who is not well spoken but this was an easy to write.Nikolai Wheeler-BalazevNikolai Wheeler-Balazev ★★★★★ I want to start off this review by thanking Mr.Vilkhov for handling my case, Igor got my case resolved in a timely manor, i had previously been going to court for my case for about a year, and when i had gotten Mr.Vilkhov as my lawyer he had my case resolved and all my charges withdrawn in a matter of days. If anybody is looking for a lawyer i would urge you to go with Mr.Vilkhov, he knows what he is doing and knows how to do it quickly.Shannan HarrisonShannan Harrison ★★★★★ Mr. Vilkhov is an outstanding lawyer, I just avoided a lengthy jail sentence because of him. I literally cannot believe what he was able to do for me. The judge in court praised him for his work, thank you so much.Anoop RAnoop R ★★★★★ One of the best law firms in town! Highly recommended. Just retain them. They'll do the rest.ARRARR ★★★★★ I was falsely accused and charged with a serious offence. All it took was just one phone call from the complainant. As an immigrant, it was a nightmare. Fortunately Igor was the first person whom I contacted and I knew he was the one and I retained him. Beware of the lawyers who try to scare you, make you feel insecure. From the first phone call, he never made me feel insecure. He was confident that he can get the work done. Igor and Daniel promptly attended all my court dates. It took a while to achieve the resolution and finally my case was unconditionally withdrawn. I can't thank him enough. As Igor is a busy person, I was getting updates regularly from Daniel. I would give six stars to Daniel. Igor should never let him go. I would definitely recommend this law firm. You might sometimes feel that Igor is late in responding, but he'll be putting all his efforts behind the scene. Just have faith in him. I wish Igor and Daniel all the best.Brandon ABrandon A ★★★★★ Igor was fantastic to work with. He was always very quick to respond and answered any questions I had at any time during the process. I'm so impressed for his amazing and efficient work - he was able to have any charges against me dropped. I highly recommend Igor to anybody that's currently facing legal trouble. He truly exceeded my expectations and I'm so grateful for everything. Thank you Igor!Maria AgasMaria Agas ★★★★★ I was very impressed with his professionalism, swift responses and attention to detail. He was proactive and always communicated next steps. I’m so happy we came across Igor and his team. Igor is amazing and wonderful lawyer.Cindy LiCindy Li ★★★★★ I cannot express my gratitude enough for the exceptional legal representation provided by Igor. Facing wrongful accusations was a harrowing experience, but Igor's expertise and dedication swiftly turned the tide in my favor. He navigated the complexities of the case with professionalism, demonstrating remarkable intelligence and a deep understanding of the legal system. Thanks to his efforts, the charges were withdrawn in a timely manner, allowing me to move forward with my life. Igor is not just a good lawyer; he is an outstanding advocate for his clients. I wholeheartedly recommend his services to anyone in need of top-notch legal assistance.George ArellanoGeorge Arellano ★★★★★ Mr. Vilkhov got my charges withdrawn today after a very stressful time in my life. I hired him because of his reviews and I am not surprised that I got this result. I appreciate him and his team. Igor literally dedicates his entire life for his clients.Latch RamoutarLatch Ramoutar ★★★★★ I am sitting here at 10 Armoury street after my charges were just withdrawn. I cannot thank Igor enough for what he has done for me. This was supposed to be a trial where I was facing a ten year jail sentence. Somehow Igor got my charges dropped. This man is the lawyer you need, hands down. Also a very nice person.Emad MEmad M ★★★★★ Do not blink! Go with him.I know for stressful this process might be an how awful law system might be treating you, also how difficult it might be to trust someone with your “life”.Igor knows what he is doing and he saved my partner and I from false accusations of a jealous individual!He didn’t over charge, he didn’t hold back on any help a lawyer could possibly provide.This man is the best saviour one can ask for in these situations.Christa DuchenoChrista Ducheno ★★★★★ No kidding, if you need an attorney and You want the Best lawyer to defend you and your rights in the legal system I’d definitely recommend you call Igor Vilkhov.I am completely and gratefully satisfied with His professional guidance, knowledge of the complex legal system and most of all for saving my life. I give Igor and his Team my hands heart shout out Thank You for your dedication, I couldn’t have gotten through it without Y’all.Stephanie SchembriStephanie Schembri ★★★★★ Mr.Vilkhov thank you for keeping our family together we are forever gratefulAndreyAndrey ★★★★★ Highly recommend. Fast and reasonablejs_loader


    “Caring, honest, and highly knowledgeable.”

    Contact Igor for a Free Consultation!

    Please contact us online for a free consultation.
    Go to Top