What is Voyeurism?

The offence of voyeurism was only added to the Criminal Code of Canada in 2005, making it one of the most recent additions to the Code.

Since the widespread use of the Internet and smartphones, the criminal justice system has amended, updated and added laws that address the criminal use of communication networks/devices and challenge people’s right to privacy.

The voyeurism laws were developed largely with this in mind but also addressed more traditional “Peeping Tom” offences.

What is a charge of voyeurism?

A charge of voyeurism, like any criminal offence in Canada, must be taken seriously. It can lead to an indictment and a permanent criminal record.

Anyone found secretly observing an individual who is nude, performing a sexual act or in the process of doing so can be found guilty of voyeurism, which is addressed in the Criminal Code of Canada as follows:

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.

In other words, the non-consensual, surreptitious viewing, photographing or filming of another individual with a reasonable expectation of privacy is a criminal offence.

Voyeurism laws were designed to protect people’s right to privacy and to prevent sexual exploitation. As cameras in smartphones have become increasingly sophisticated, the number of voyeurism charges has increased.

In Ontario, no cases of voyeurism were reported in 2005 but they amounted to almost 350 allegations in 2021.

Is voyeurism a summary or indictable offence?

Voyeurism is considered a “hybrid” offence. This means that it can proceed summarily or as an indictable offence. The choice of how to proceed is based on the circumstances of the case and the strength of the prosecutor’s evidence.

With a strong legal defence, a defendant can escape the worst potential consequences of a voyeurism charge. Few people convicted of voyeurism will spend time in jail.

What must the prosecution prove in a voyeurism case?

To successfully convict a person of voyeurism, the prosecutor must prove the following:

• The defendant watched or recorded someone surreptitiously (without their consent)
• The subject was in a place with a reasonable expectation of privacy
• The defendant observed or recorded the subject for a sexual purpose

“Reasonable expectation of privacy”

According to a 2019 Supreme Court of Canada ruling: “being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording.”

In other words, a “reasonable expectation of privacy” can apply not only to a person at home but also in a public space if they reasonably expect not to be the subject of observation or recording for sexual purposes.

Whether the recording or observation transgresses someone’s right to privacy depends on the following types of factors:

• The person’s location
• The nature of the observation/recording
• The activity in which the subject is engaged when observed/recorded
• The part of the subject’s body that the recording focused on

Examples of voyeurism

Some common examples of voyeurism in Ontario include:

• A hidden camera that records a guest in a hotel shower
• A camera secretly placed in a public changing room
• A camera placed in a workplace washroom
• Recording an individual in his/her bedroom without his/her knowledge or consent
• Using a peephole to watch someone changing

What are the punishments for voyeurism?

Depending on whether the case proceeds summarily or as an indictment, a voyeurism conviction can lead to the following punishments in Canada:

• Summary: up to 2 years less a day imprisonment and a $5,000 fine
• Indictment: up to five years’ imprisonment

In practice, few people serve jail time for a voyeurism conviction. No mandatory minimum penalties apply to this offence.

However, the court will consider many factors before sentencing. If, for instance, the defendant attempted to conceal evidence, prevent the victim from reporting the offence, has prior convictions of a sexual nature or targeted a young victim, a harsher penalty is more likely.

A conviction may lead to mandatory inclusion on the Ontario Sex Offender Registry (OSOR) and inclusion on the federal registry.

It should also be noted that the immediate criminal penalties may not be the only punishments faced. The reputational damage can be severe and a criminal record can have wide-reaching implications for an offender’s employment, education, immigration status, travel and more.

What are the main voyeurism defences?

If you are charged with voyeurism, the prosecution must prove your guilt beyond a reasonable doubt. We will generally select one of the following defences, depending on the evidence against you and the circumstances of the case:

• Factual innocence: the facts and the evidence do not support you being there and observing or recording the subject. If there is no video surveillance or only poor-quality footage, we may be able to argue a case of mistaken identity if you have an alibi to support this assertion.
• No mens rea/actus reus: if we can argue that you had the consent of the other person, there was no reasonable expectation of privacy or the recording was not made for sexual purposes, you cannot be found guilty of voyeurism.
• Charter Rights violation: if evidence was improperly gathered or you were arrested in breach of your rights under the Canadian Charter, it would be difficult for the prosecution to successfully convict you.

Any criminal charge is a serious matter and sexual offences can be particularly damaging even if no conviction results. Charges should be vigorously defended or, if you accept responsibility, the consequences for your future must be mitigated.

Book a free consultation with David Anber’s Law Office in Ottawa, where we will assess your case and outline your legal options.