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.

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

The charge of voyeurism

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 end 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 in order 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.

In order 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.

Penalties for voyeurism 

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

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 places 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.

When it comes to a criminal sentence, a conviction for voyeurism may be treated as a summary or an indictable offence.

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.

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.