Table of contents:
- What Is Voyeurism Under the Law?
- Limitations of the Current Law
- What Can Be Considered a “Surreptitious” Observation or Recording?
- Conceptualizing a Voyeurism Offence
- What the Crown Must Prove
- What Are the Available Defence Strategies Against Voyeurism?
- There Could Be No Reasonable Expectations of Privacy
- The Alleged Offence Was Not Committed Surreptitiously
- The Recording Was Not for Sexual Purposes
- Charter Rights Violations Are Always in Play
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.
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