Understanding Canadian Criminal Law

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The Advocates Society AIDWYC Criminal Lawyers Association Ontario Bar Association Toronto Lawyers Association Certified as a Specialist in Criminal Law by the Law Society of Upper Canada

Defending Voyeurism Charges in Canada

voyeurism charges canadaVoyeurism was added to the Criminal Code of Canada in 2005 to address a concern that new technologies could be used to more easily spy on people secretly for sexual purposes.  A voyeurism conviction can cause irreparable harm to a person’s reputation and employment prospects. Moreover, a person convicted of voyeurism will be placed on Canada’s sexual offender registry for a decade or more.  If you are looking for a criminal lawyer to defend a voyeurism charge in Toronto, please contact Daniel Brown Law to receive specific advice.

prosecuting and defending sexual offences textbookDaniel Brown, Lead Counsel at Daniel Brown Law, is a widely recognized authority on defending sexual offence allegations including voyeurism.

His legal textbook which covers the defence of voyeurism and other sexual offences is sold across Canada and is often consulted by judges, prosecutors and other defence lawyers working on similar cases. Follow the link to learn more about Daniel’s text on Prosecuting and Defending Sexual Offence Cases.

Daniel is also designated as a certified specialist in criminal law and has successfully defended many voyeurism cases across the province on behalf of his clients.

Frequently asked questions about voyeurism:

What is voyeurism?

What is meant by a secret recording?

What if the person making the recording is not doing it in secret?

What locations will create a reasonable expectation of privacy?

How do courts decide whether the secret recordings were made for a sexual purpose?

What are some defences to voyeurism?

What is the range of sentence for voyeurism?

Will a person convicted of voyeurism be placed on the sexual offender registry?

What is voyeurism?

According to section 162 of the Criminal Code, voyeurism is committed when a person secretly observes someone or makes a recording of them where the observed or recorded person had a reasonable expectation of privacy. The secret recording or observation must capture the exposure or expected exposure of a person’s genitals and/or breasts, sexual activity, or was done for a sexual purpose.

It is also a crime to print, copy, publish, distribute, circulate, sell, advertise or make available the voyeurism recording where the person in possession of the recording knows that it was secretly obtained illegally. A “recording” includes a photographic, film or video recording made by any means.

What is meant by a secret recording?

A secret or “surreptitious” recording has been interpreted by the courts using its ordinary dictionary meaning.  Examples of surreptitious recordings from other voyeurism prosecutions include:

  • Video images captured by way of a camera concealed in a stepdaughter’s bedroom;
  • A video-recording made of a thirteen-year-old girl in a hotel shower by way of a camera secreted in a shaving bag;
  • A video camera hidden in a wastebasket in an office washroom so as to afford an angled view of the toilet;
  • A man relieving himself at an office urinal secretly photographed by a co-worker seated in a nearby closed toilet cubicle;
  • The genital and anal regions of a young female child being changed by her caretaker in a park videotaped by a man using a zoom lens and a “blind” while hiding in his car in a nearby parking lot;

What if the person making the recording is not doing it in secret?

A judge in a recent criminal case concluded that taking photos on a nude public beach from a distance using a compact camera that was not concealed, miniaturized or disguised even when most of the photos were taken from behind or to the side of his subjects did not render the activity surreptitious. The accused person was found not guilty of voyeurism as he did not make a secret or surreptitious recording.

What locations will create a reasonable expectation of privacy?

It is difficult to define the boundaries for places that attract a reasonable expectation of privacy and our courts often determined this on the basis of the totality of the circumstances. In the context of a voyeurism charge, places where a person can reasonably expect to be nude have been found to include:

  • The men’s urinal at the accused’s workplace as people were using it;
  • The bathroom of a matrimonial home;
  • An office washroom in which a camera was placed in a wastebasket located between the toilet and the sink that afforded an angled view of the toilet and which recorded a female employee using the washroom;
  • A clearly marked women’s shower area where the male accused entered as the female complainant was taking a shower;

A dry good storage room that also doubled as a change room for male and female employees was held not to be a place in which there was a reasonable expectation of privacy. Likewise, a nude-optional public beach was also held to be a place where no reasonable expectation of privacy existed. The court has also concluded that a high school classroom was not a place where students would expect a reasonable expectation of privacy.

How do courts decide whether the secret recordings were made for a sexual purpose?

In assessing whether an observation or recording is made for a sexual purpose, a Judge will view the recording through the eyes of a reasonable observer rather that examining what was in the mind of the person who made the recording. Looking at the recording objectively and in context, a judge must determine whether or not the video is reasonably perceived as intended to cause sexual stimulation to some viewers.

What are some defences to voyeurism?

A person cannot be convicted of voyeurism if the recording serves the public good and does not extend beyond what serves the public good. A person can also successfully defend a voyeurism allegation if they can establish that the observation or recording was not made surreptitiously, or that the person being recorded was in a place where they could not have expected to have privacy. Voyeurism charges can also be defended on the basis that the observer didn’t capture or intend to capture the exposure or expected exposure of a person’s genitals and/or breasts, sexual activity, or was done for a sexual purpose.

What is the range of sentence for voyeurism?

Voyeurism is a hybrid offence. Where the Crown proceeds by way of indictment, the maximum sentence is five years imprisonment.  Where the crown proceeds by summary conviction, the maximum sentence is six months imprisonment. There is no minimum sentence for voyeurism.

Will a person convicted of voyeurism be placed on the sexual offender registry?

A conviction for voyeurism will trigger the sexual offender registry provisions of the Criminal Code. Where the crown proceeds by summary conviction, a person convicted of voyeurism will be placed on the Sexual Offender registry for at least 10 years. Where the crown prosecutes the voyeurism charge by indictment, the offender will be placed on the Sexual Offender registry for at least 20 years. A person convicted of multiple counts of voyeurism will be placed on the registry for life. Follow this link to learn more about Canada’s Sexual Offender Registry.

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