What is Voyeurism?

Voyeurism is a relatively new offence added to the Criminal Code of Canada.

It was introduced in 2005 as a response to the increasing use of new technologies to spy on people and secretly observe or record them for sexual purposes.

Since then, the ability to record on smartphones and ever-smaller portable devices has only exacerbated the problem.

This has led to the introduction of strong deterrents via the punishments handed out for convictions for such sexual offences.

So, what does the law state and what could it mean if you are charged with voyeurism?

How is the charge of voyeurism defined?

The Criminal Code of Canada sets forth the definition of voyeurism:

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.

Printing, copying, publishing, distributing, circulating, selling, advertising or otherwise making available such recordings is also a crime (an additional one to voyeurism), if the person in possession of the recording knows that it was illegally obtained.

What is a “visual recording”?

A visual recording includes:

• Photography
• Film
• Video recording made by any means

Examples of voyeurism

To “surreptitiously” observe or record someone is to do so secretly in an area where the person can have a reasonable expectation of privacy.

This may include:

• Taking pictures of a person in the bathroom with a camera hidden in the wastebasket
• Recording a person in their bedroom without their knowledge
• Secretly filming someone with a smartphone camera while they are using a urinal
• Using a zoom lens to take pictures of a child having his or her diapers changed
• Recording someone in a hotel shower using a secret hidden camera

If you are accused of doing any of the above or performing similar actions, you can be charged with voyeurism by law enforcement.

Places where a person can have a reasonable expectation of privacy include:

• Showers and bathrooms – both public and private
• Public or workplace urinals
• Changing rooms
• Almost anywhere in a private home
• Public baby-changing facilities

Proving a voyeurism charge

Implicit in a voyeurism charge is the element of secrecy, the reasonable expectation of privacy, and use for a sexual purpose.

The Crown will have to prove each of these elements to secure a conviction.

If, for example, you are accused of voyeurism for openly taking pictures from a distance on a public nudist beach, it would be hard to prove at least two of the prerequisites.

To conclude that a recording was made for a sexual purpose, a judge will need to be satisfied that a reasonable observer would perceive it as intended to cause sexual stimulation.

When making this judgement, purely circumstantial evidence can be taken into account if the Crown can prove that no rational conclusion could be drawn from the evidence other than the recording being made for sexual reasons.

Defences for voyeurism charges

There are three common defenses to voyeurism charges but their applicability will depend on the circumstances of the case.

Here’s a brief overview of the main defences:

• No reasonable expectation of privacy: a defendant cannot be guilty of voyeurism if he/she takes a recording of a person in a place with no reasonable expectation of privacy, like a nudist beach, which is a public setting where people are aware that they are in the view of others
• The recording was not done for a sexual purpose: sometimes, people make legitimate recordings for surveillance, security or artistic purposes and the recording of another person was accidental (hence the mental intent to be deemed guilty is missing from the alleged offence).
• Evidence was obtained by breaching the defendant’s Charter rights: under the Canadian Charter, every citizen has certain protected rights and freedoms. If, during the investigation or arrest, these rights were violated (for instance, the police found the recording while conducting an illegal search of your phone or computer), the evidence gathered may be inadmissible and the prosecution’s case can fall apart. This often results in an acquittal.

Penalties for voyeurism 

If you are charged with voyeurism, you face the prospect of harsh immediate penalties.

A conviction for voyeurism may be treated as a summary or an indictable offence. This is known as a “hybrid” offence, open to the discretion of the court.

The most serious cases (for instance, those involving children or abusing a position of trust) are generally treated as indictments and may result in a prison term of up to five years.

A summary prosecution will result in a maximum prison sentence of six months.

However, there are also longer-term consequences to consider. These include the stain on your reputation, the damage that it can do to your relationships and the harm it can do to your employment prospects.

For instance, you will be placed on Canada’s sexual offender registry for a decade or more and your criminal conviction will be potentially visible (for life) to organizations conducting background checks.

Even a charge of voyeurism can place you in a difficult position. You may have reputational challenges and difficult questions to answer from employers as well as friends, colleagues and loved ones.

Other possible outcomes of voyeurism charges

Even if you are guilty of the offence of voyeurism, it does not lead to an automatic prison sentence or even, in some cases, a criminal record. Your chances of escaping both of these outcomes improve if it is your first offence or you have a very limited criminal record.

We may be able to negotiate with the Crown Prosecution for placement in a diversion program in return for the charges against you being withdrawn.

One such program is a mental health diversion program. Sometimes, underlying mental health issues lead a defendant to commit a particular offence. The justice system recognizes that simply punishing the offender is not going to necessarily solve the underlying issue. Rehabilitation via a mental health program may be recommended.

Defendants offered this option must complete the program for the charges to be withdrawn and to avoid a criminal record.

Another option may be to sign a peace bond. This has a similar result — charges are withdrawn and no criminal record results — but instead of signing up for a diversion program, defendants must agree to comply with a set of conditions stipulated by the court (usually for one year).

A third way to escape a criminal record is by negotiating with the Crown Prosecutor for a discharge.

Under the terms of a conditional discharge, a defendant pleads guilty to the charge and must agree to comply with a set of conditions imposed by the court for a certain period. If this period is completed with no violation of the conditions, the defendant escapes without a criminal record even though he/she pled guilty.

An absolute discharge, on the other hand, means a defendant has no criminal record with no conditions attached to the discharge. It happens immediately after the defendant has pled guilty.

What to do if you are charged with voyeurism

A voyeurism charge can be very challenging for the accused but, with the assistance of Cory Wilson, you will be supported by a lawyer experienced in defending sexual offence charges, including voyeurism.

There is light at the end of the tunnel.

To arrange a free, no-obligation consultation with us, call 403-978-6052 or email us here.

About Cory Wilson

Cory has represented individuals from all walks of life including lawyers, police officers, athletes, corporate executives, teachers, and everything in between. Cory believes in access to justice for every person charged with a criminal offence regardless of their economic background.