Definition of Voyeurism Under Canadian Law
Under s. 162(1) of the Criminal Code of Canada, voyeurism is committed if anyone 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 they 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.
In other words, voyeurism occurs when a person either secretly watches or makes a visual recording (photograph, film, or video) of another person in a place where they would reasonably expect privacy.
Examples of Places Where Someone Would Reasonably Expect Privacy
A person would reasonably expect privacy in the following locations:
- A bathroom
- Fitting room
- Locker room
- Shower stall
- Toilet stall
Penalties for Voyeurism
The Crown can charge a person with voyeurism as either a summary or an indictable offence. If the Crown decides to proceed as a summary offence, the penalties are less severe.
- Summary Offence: On conviction, the accused can be sentenced to six months in jail and a maximum fine of $2,000.
- Indictable Offence: On conviction, the accused can be sentenced to up to five years imprisonment.
Depending on the facts of the case, the offender may also be placed on the Sex Offender Registry for ten years.
Possible Defences to a Voyeurism Charge
If you have been charged with voyeurism, you have options other than to plead guilty. The following are examples of possible defences your lawyer may suggest:
There Was No Reasonable Expectation of Privacy
The definition of voyeurism hinges on a reasonable expectation of privacy. Suppose you can show no expectation existed in the location where the observation or recording happened. In that case, you won’t be found guilty.
The Recordings Were Not for a Sexual Purpose
The Crown has to prove that the accused was observing another person or making recordings for a sexual purpose. The defence can argue that the recordings and observations were not made for a sexual purpose.
The police or a private investigator could have another person under surveillance. The recording leading to the voyeurism charge could have been caught accidentally. The accused could have been recording another person for artistic reasons and did not have the intent to film someone without their knowledge or consent.
Accused’s Charter Rights Were Breached
The police must ensure that they don’t infringe on your constitutional rights while conducting their investigation. Suppose they obtained evidence from a search of your home, electronic devices, or cellphones illegally. In that case, you could argue your rights were violated under Section 8 of the Charter. This is the section that protects you from unreasonable search or seizure.
If your defence lawyer successfully makes this argument, evidence obtained from these searches is inadmissible at trial. The Crown may decide not to pursue your case if the evidence obtained in the searches is all it has to support the charges.
Consult an Experienced Voyeurism Defence Lawyer
When you retain an experienced voyeurism defence lawyer, you get someone who will aggressively defend your legal interests. Each case is different, and your lawyer will develop a strategy to attack the Crown’s allegations that it can prove all the elements of voyeurism occurred.
If you are facing a voyeurism charge in Ontario, you need an experienced criminal defence lawyer to represent you. They will review the facts of your case and your version of events and advise you about the best way to proceed. The experienced and knowledgeable sexual assault defence lawyers at Kruse Law will work diligently to ensure your case has the best possible defence. Schedule a free meeting and quote, or call us at (519) 728-2183 to speak with one of our professionals today.