What are Defences to Voyeurism?
To understand defences to voyeurism charges, we must first clarify what the crime is and what the prosecution must prove to secure a conviction.
According to the Criminal Code of Canada, the charge of voyeurism applies to the following acts:
162 (1) Every one 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
- (a) 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;
- (b) 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
- (c) the observation or recording is done for a sexual purpose.
To be convicted of voyeurism, the Crown prosecution must prove each of the following:
- The observation or recording was done in secret (surreptitiously)
- The offence happened in a place where a person can have a reasonable expectation of privacy
- The observation or recording was made for a sexual purpose
Some typical examples include:
- Taking pictures of a person in the bathroom with a hidden camera
- Recording a person without their knowledge in their bedroom
- Secretly filming someone using a urinal with a smartphone camera
- Using a zoom lens to take pictures of a child getting changed in the school changing rooms
- Recording someone in a hotel shower with a secret hidden camera
Two of the best defences to voyeurism charges revolve around the place in which the offence allegedly occurred and the purpose of the observation or recording.
No reasonable expectation of privacy
There is a reasonable expectation of privacy in each of the following examples:
- The urinals or cubicles in a workplace toilet
- A bathroom or shower
- Almost anywhere around your home property
- Changing rooms
- Public baby-changing facilities
However, at a public nudist beach, there is generally no reasonable expectation of privacy and voyeurism cases have been difficult to prove in these instances.
The people at a public nudist beach would normally expect for their nudity to be in plain view of other people.
Whether or not a recording was done openly or secretively, it is challenging for the Crown prosecution to secure a conviction in these cases.
Even if they are able to prove the “reasonable expectation of privacy”, they still need to show that the recording was made for sexual purposes.
Recordings were not for sexual purposes
To reach the conclusion that photographic pictures or recordings were made for sexual purposes, a judge will need to be satisfied that it would be perceived as intended to cause sexual stimulation by any reasonable observer.
In these cases, circumstantial evidence may be enough if it demonstrates that no rational conclusion could be drawn from the evidence other than the recording being made for sexual reasons.
If, however, a recording was made to detail an area for security or artistic reasons but, in the process, someone was caught on camera baring intimate body parts, it could rationally be argued that the recording of the complainant was purely accidental.
If intent cannot be shown by the prosecution, no conviction can be secured, so a defence lawyer may focus on this element of the charge if there is good reason to do so.
Breach of Charter rights
Voyeurism charges can also be challenged successfully if the evidence against you was obtained with a violation of the rights guaranteed to you by the Charter.
For instance, if an illegal search of your phone or computer was conducted where police found video “evidence” that they believed constituted voyeurism.
You have a right to be free from unreasonable search and seizure under section eight of the Charter. If your lawyer can argue that the search was illegal, the evidence may be thrown out.
This could lead to immediate case dismissal and acquittal.
What can you do if you are charged with voyeurism?
Even a charge of voyeurism may place you in an awkward position with employers, friends, colleagues, and loved ones.
A conviction can be disastrous with the most serious cases resulting in a prison term of up to five years.
Cory Wilson is a lawyer experienced in defending sexual offence charges, including voyeurism. He can provide the support you need at this difficult time.
To arrange a free, no-obligation consultation with us, call 403-978-6052 or email us here.