How to Defend Voyeurism Charges?
In 2005, the offence of voyeurism was added to the Criminal Code to address the need to protect people’s privacy with technology becoming more and more accessible. As outlined in section 162 of the Criminal Code, it is now a criminal offence to surreptitiously record or observe another individual without their consent while they are in circumstances that would give rise to a reasonable expectation of privacy, if the person being recorded is in a location where they can reasonably be expected to be exposing their genitals, anus or breasts, be engaging in explicit sexual activity, if the individual being recorded is exposing their genitals, anus or breasts or is engaging in explicit sexual activity and the recording or observation is for a sexual purpose, or finally if the recording or observation is for a sexual purpose.
In Canada, all individuals have a right to privacy in certain circumstances. For example, individuals have a reasonable expectation of privacy inside their place of residence. Individuals also have a reasonable expectation of privacy in certain public places or in certain situations. For example, an individual using a public restroom or change has the right not to be observed or recorded while inside. Similarly, an individual walking in public has a right to privacy in what is underneath their clothing. An individual who uses an electronic device to look up someone’s skirt, for example, would be guilty of voyeurism.
Essentially, an individual will have a reasonable expectation of privacy in any location where a person can reasonably be expected to be nude, exposing their anus, breasts, or genitals, or engaging in sexual activity.
If you have been charged with voyeurism it is important to protect your rights immediately. Those convicted of a voyeurism offence may face serious consequences as a result. In addition to criminal sanctions, those convicted of voyeurism may be ordered to register as a sex offender for a period prescribed by the sentencing court.
To avoid the criminal sanctions and other negative impacts associated with a voyeurism conviction it is important to formulate the correct defence. Experienced legal counsel can assist you in developing a unique defence for the allegations against you. Donich Law has experience defending individuals charged with voyeurism and other sexual offences and can assist you in developing the best defence for your case.
Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made. Click here for more information on new changes to child sex offence sentencing. Click here for more information on new changes to sexual assault laws in 2021. For more information on how to get voyeurism charges dropped click here.
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Legal Information
Frequently Asked Questions
What is Voyeurism and How are People Charged?
What are the Best Defences to Voyeurism Charges?
-No Reasonable Expectation of Privacy
-Not for a Sexual Purpose
-Serves the Public Good
What are Common Sentences for Those Convicted of Voyeurism?
Sexual Assault Resources
Assault
Assaulting a Peace Officer
Child Pornography Forensics
Children’s Aid Society
Sexual Assault Law in Canada
Sex Offender Prohibition Orders
Consequences of a Criminal Record
Domestic Abuse
First Offenders
Immigration Consequences
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
Your Rights
What is Voyeurism and how are People Charged?
The offence of voyeurism prohibits individuals from surreptitiously observing or recording another individual without their consent in a situation where there is a reasonable expectation of privacy if the individual being recorded is in a location where they can reasonably be expected to be exposing their genitals, breasts, anus or be engaged in explicit sexual activity, or where the individual being recorded is exposing their genitals, breasts, or anus, or is engaging in explicit sexual activity and the recording is done for a sexual purpose, or where the recording is done for a sexual purpose.
The offence of voyeurism was added to the Criminal Code in 2005 to address individuals using technology to surreptitiously observe or record other individuals in public without their consent. One of the most common ways individuals are arrested and charged with voyeurism is for using hidden cameras to surreptitiously record others around them. Common examples include using pen cameras or cell phones to record up the skirt or down the shirt of another individual or using hidden cameras in change rooms or public restrooms to surreptitiously record individual’s in various stages of undress. In recent years, there have been reports of hidden cameras being placed inside Airbnb’s or hotel rooms and used to record occupants.
When law enforcement has reasonable grounds to believe an individual has committed voyeurism, or where they have been given evidence by a complainant or a witness, they will arrest the accused. The police may also get a search warrant allowing them to confiscate the accused’s electronic devices. If evidence of voyeurism is found on the devices, it will be used against the accused in court.
What are the Best Defences to Voyeurism Charges?
When developing a defence for a voyeurism offence it is important to understand the facts of the case and the evidence in the possession of the Crown. Each defence must be tailored to the particular facts of the case. Generally, there are three defences that may be used to beat a voyeurism charge. They include arguing that the individual recorded had no reasonable expectation of privacy in the location they were in, arguing that the recording was not done for a sexual purpose and finally, arguing that the recording or observation was for the public good and did not extend past serving the public good.
No Reasonable Expectation of Privacy
For an individual to be convicted of the offence of voyeurism, the Crown must prove that the individual who was recorded or observed was in a location where they had a reasonable expectation of privacy. If, however, the individual recorded or observed was in a location where there was no reasonable expectation of privacy, the accused cannot be convicted. For example, if an accused observed or recorded an individual who chose to expose their genitals in a public place, they cannot be convicted of voyeurism.
Not for a Sexual Purpose
In certain situations, for an individual to be convicted of voyeurism the Crown must prove that the accused observed or recorded an individual for a sexual purpose. If the accused was recording or observing for a purpose other than a sexual purpose, they may be able to beat their voyeurism charge. For example, if an accused can prove they were recording another individual for artistic purposes, they may beat their voyeurism charge.
Serves the Public Good
Section 162(6) of the Criminal Code also provides a built-in defence for those charged with voyeurism. The section states that no person shall be convicted of voyeurism under section 162(1) if the acts that are alleged to constitute the subject matter of the offence serve the public good and do not extend past what serves public good. If the accused can prove that they were observing or recording for public good, the court will not convict them of the offence.
What are Common Sentences for Those Convicted of Voyeurism?
Those convicted of voyeurism may face penalties ranging from fines and community service to jail time. The sentence imposed on a particular offender will depend on a number of factors. The sentencing court will consider the age of the offender, the nature of the alleged offence, the number of alleged victims, the criminal history of the accused and any other aggravating or mitigating factors presented to the court.
Where an accused is a youthful first-time offender, they may be granted a discharge, which is a finding of guilt that is not considered a criminal conviction. In other situations where an accused has a history of criminal behaviour or where the allegations are particularly serious, they may be sentenced to a period of incarceration. An accused convicted of voyeurism may be sentenced to a maximum of five years in prison.
Depending on the nature of the allegations, the Crown may also make an application to the court on sentencing asking the court to issue a SOIRA order. A SOIRA order is an order that requires the accused to register as a sex offender under the Sex Offender Information Registration Act.