In Canada, voyeurism is against the law and has been considered a criminal offence ever since its introduction to the Criminal Code in 2005. Although consensual voyeurism, visiting websites containing nude images, and observing people on nude beaches and clubs is not prohibited, it is a crime in Canada to spy on someone unaware of being observed or recorded for sexual interest and reasonably expecting privacy.
With recording technology becoming more available, the criminal charge of voyeurism has become more common in Ontario and Canada as a whole. Voyeurism is a serious criminal offence, and conviction can result in long-term incarceration, a criminal record, and being listed on the National Sex Offender Registry (NSOR) with devastating consequences.
What Is Voyeurism?
The offence of voyeurism is defined in Section 162 of the Criminal Code of Canada. According to the Code, someone commits an offence of voyeurism when they secretly observe or make a recording of another person for sexual interest where the other person is nude, exposes nudity, or is engaged in sexual activity while expecting privacy.
The elements of the offence of voyeurism include:
- reasonable expectation of privacy by the other person,
- surreptitious or secret nature of the observation or recording of nudity,
- sexual interest behind such observation or recording.
When the Crown accuses someone of the offence of voyeurism, they must prove beyond a reasonable doubt all of the above elements of the crime. If any of these elements is missing, there cannot be a criminal charge for voyeurism.
What Can Be Considered a Secret Recording or Observation?
According to the Criminal Code, a visual recording includes photos, films, or videos made by any means. In most cases, the court will consider a recording made by concealed cameras in bathrooms, bedrooms, change rooms, and similar venues where someone could reasonably expect privacy as a secret recording.
Peeping or filming someone nude through the use of hidden cameras would also be viewed as secret observation or recording according to the Criminal Code. Producing such a recording may give rise to the charge of voyeurism if done for sexual purposes in violation of someone’s privacy.
Where Can Someone Have Reasonable Expectations of Privacy?
The Canadian court exercises broad discretion in defining the circumstances where someone can reasonably expect privacy. Currently, such instances are not limited to bathrooms and change rooms, but extend to schools, shopping malls, and other public areas as well.
In its milestone decision of R. v. Jarvis, the Supreme Court of Canada has held the belief that ‘the word ‘privacy’ includes the concept of freedom from unwanted scrutiny, intrusion or attention.’ For example, in the case of a teacher making a surreptitious recording of female students focusing on their upper bodies and breasts, the Supreme Court of Canada found the teacher guilty of voyeurism. The Supreme Court decision ruled that students had a reasonable expectation of privacy in all school areas, which, in turn, allowed the application of the concept of privacy to a much wider range of instances.
What Are Available Defence Strategies Against Voyeurism?
For a charge of voyeurism to result in a conviction, the Crown must prove that the offender secretly observed or recorded people nude who could reasonably expect privacy, and that the intent was of a sexual nature.
However, if any of these circumstances are missing – for example, if a recording was made for security reasons without sexual intent – it wouldn’t count as a criminal offence.
There Could Be No Reasonable Expectations of Privacy
While everyone is entitled to freedom from unwanted scrutiny, intrusion, or attention, many circumstances exclude privacy. For example, someone cannot reasonably expect privacy while on a nude beach, or in similar circumstances.
During the R. v. Lebenfish case, the court of Ontario dismissed a claim of a woman pressing charges against a man taking photos of her on a nude beach in Toronto. The court dropped the charges on the grounds that the alleged victim could not reasonably exclude being photographed while sunbathing on the nude beach, where photography was not expressly prohibited.
The Recording Was Not for Sexual Purposes
In judging where there is sexual intent, many courts consider if the observation or recording could be intended to cause sexual stimulation in viewers.
In the absence of sexual intent, the Crown is unable to start a case on voyeurism. For example, if a security camera films someone nude or engaged in a sexual act, the footage cannot give rise to a charge of voyeurism because the recording is meant for other purposes.
The Police Violated Charter Rights
In cases of the police conducting searches or obtaining evidence in a manner that violates your Charter rights, your sexual offence lawyer is able to cite Section 8 of the Charter granting every Canadian the right “to be secure against unreasonable search or seizure.” It would then be up to the court to decide if the evidence provided by the police is legitimate, which can result in the dismissal of your case.
Since most voyeurism cases are context-dependent, it is important to seek out the assistance of a lawyer experienced in voyeurism cases to choose the defence strategy with the highest chances of success in court.
The Sentences for Voyeurism in Canada
Similar to other sexual offences in Canada, voyeurism is a hybrid offence which can be prosecuted summarily or by indictment. For example, someone who only observes his female neighbour as she undresses will likely receive a summary offence with minimal penalties, or even a complete withdrawal of charges.
However, in more serious cases where the Crown chooses to proceed by indictment, punishment includes imprisonment for up to five years. In both summary and indictment cases, conviction will usually be followed by the creation of a criminal record, and can also result in registration with the National Sex Offender Registry.
Given the gravity of a voyeurism conviction in Canada, it is never a good idea to face these types of charges on your own. An experienced Toronto-based sexual assault lawyer can help you minimize the consequences of criminal charges laid against you, gather relevant evidence, and position you for the most favourable outcome possible.
If you have been accused of voyeurism in Ontario, don’t hesitate to contact Vilkhov Law today for a free and confidential consultation about your case.