Know Your Rights

What is Voyeurism?

Voyeurism is an offence under section 162 of the Criminal Code of Canada. The offence involves intentionally and secretly observing or recording someone in circumstances where people have a reasonable expectation of privacy.

Under the Criminal Code, voyeurism requires a reasonable expectation of privacy, and at least one of three specified situations must apply;

• The Recording or Observation Happens in a Particular Type of Place

Section 162(1)(a) applies when a person is secretly observed or recorded in a place where someone could reasonably be expected to be nude, expose intimate parts of their body or engage in explicit sexual activities. Examples include bedrooms, bathrooms, and changing rooms.

A person does not have to be nude when the recording or observation occurs. The Supreme Court of Canada (SCC), in R v Downes, clarified that this part of the offence is focused on the nature of the place, rather than whether someone was nude at the very moment that the observation took place. For example, an individual could be convicted of voyeurism under this
section if they secretly photographed people in a change room, even if the people photographed were not actually nude.

• The Person is Nude or Engaged in Explicit Sexual Activity

Section 162(1)(b) is focused on the person’s state or activity rather than the location. This section can apply where an individual is nude, exposing intimate areas (genital organs, anal region or breasts), or engaged in explicit sexual activity, and the observation or recording has to be for the purpose of observing or recording a person in that state or activity. Unlike section 162(1)(a), the

• The Observation or Recording is for Sexual Purposes

Section 162(1)(c) applies when the secret observation or recording is done for sexual purposes. A person does not have to be nude in order for this provision to apply. In Downes, the SCC explained that this section applies whether a person is clothed or unclothed, regardless of the location. However, the Crown does have to prove a sexual purpose.

What is a “Reasonable Expectation of Privacy?”

Reasonable expectation of privacy is an essential element of a voyeurism charge, and it does not simply mean someone was inside a private home or behind locked doors. In R v Jarvis, the SCC explained that privacy must be considered in context. The SCC provided a non-exhaustive list of considerations that courts can use to determine if there was a reasonable expectation of privacy:

• Where the person was;
• Whether they were observed or recorded;
• Whether they knew or consented to the observation or recording;
• How the observation or recording occurred;
• What was being observed or recorded;
• Any rules or policies governing recording in that location;
• The relationship between the people involved;
• Purpose for which the observation or recording was done; and
• The personal attributes of the person who was observed or recorded.

This means a person can have a reasonable expectation of privacy even when they are somewhere they know others will see them. For example, in R v Downes, the recording was of hockey dressing rooms. Even though people in the dressing room could expect others to see them, that does not mean they expect to be secretly recorded there. As such, being observable or expecting to be recorded does not mean people consent to being secretly recorded or observed without consent, and individuals who do so could be charged with an offence under section 162 of the Criminal Code.

Elements of the Offence

The exact elements of the offence that the Crown has to prove will depend on which part of section 162 someone has been charged under. For example, on an allegation under section 162(1)(a), the Crown must prove beyond a reasonable doubt that the recording or observation was;

1. Intentional;
2. Surreptitious;
3. There was a reasonable expectation of privacy; and
4. That the other person was in the type of place where they would be expected to be nude, expose intimate parts of their body, or engage in explicit sexual activity.

Each branch of section 162 will have different requirements. The important thing, however, is that each element must be proven beyond a reasonable doubt. A weakness in one element can affect the case’s outcome.

Defences to a Voyeurism Charge

Defences available for a voyeurism charge depend on the specific allegations, the facts of the case, and the evidence. Possible defences include:

1. The observation was not surreptitious or without consent;
2. There was no reasonable expectation of privacy;
3. No sexual purpose;
4. Recording or observation serves the public good and does not extend beyond what serves the public good; and
5. Violation of Charter rights

Penalties for Voyeurism

Voyeurism is a hybrid offence, which means the Crown can elect to proceed summarily
or by indictment. The maximum possible penalties are as follows:

• Summarily → fine of not more than $5000 or a term of imprisonment of not more than two years less a day, or both.
• Indictment → 5 years’ imprisonment. These are just the maximum possible sentences. Not everyone will receive a jail sentence. The maximum sentence represents the upper limit available under the Criminal Code. Sentencing in Canada is an individualized exercise and can vary from case to case.

Sentencing Factors

Sentencing in Canada is an individualized exercise and can vary from case to case, and courts consider various aggravating and mitigating factors. Below is a list of non-exhaustive aggravating and mitigating factors that courts may consider in sentencing:

Aggravating factors that may affect sentencing:

• Number of recordings
• If recordings were shared
• Harm caused to the complainant
• Age of the complainant
• Whether the accused was in a position of trust or authority

Mitigating factors that may affect sentencing:

• No prior criminal record
• Accepting responsibility/guilty plea
• Demonstrating remorse
• Taking rehabilitative steps
• Personal circumstances that may be relevant

How can Collett Read LLP Help?

Navigating voyeurism charges and protecting your constitutional privacy rights requires precise, knowledgeable legal strategy. If you are facing an investigation or charges under Section 162 of the Criminal Code, contact us today at 905-541-2228 or fill out our intake form for a free consultation.