FIRST OFFENDER? DEFEND VOYEURISM CHARGES IN KITCHENER.  1-866-DEFENCE.

It is not uncommon for individuals who have been charged with a criminal offence for the first time to be confused and concerned. The court process can be intimidating and complicated to navigate, especially for those who have no previous experience. Being charged with a sexual offence such as voyeurism can be especially disconcerting as the penalties associated with a conviction can be quite serious.

At Donich Law, we have experience defending individuals from all backgrounds who have been accused of voyeurism, including those who have been wrongfully accused. We have experience negotiating with Crown counsel to facilitate early resolution where appropriate as well as litigating matters to trial where appropriate. We can assist you in developing the best defence for your set of circumstances.

In 2019, the Firm defended a man charged with voyeurism after he allegedly surreptitiously recorded up the skirt of a woman inside a dollar store in R. v. I.B. [2019]. In that case, the police confiscated the accused’s smartphone upon his arrest, gaining access to the videos. After negotiating with the Crown, the Firm was able to resolve the matter without a criminal record.

In 2018, the Firm represented a man alleged to have been involved in a complex scheme to surreptitiously record women at a large public event in Toronto in R. v. R.J. [2018]. Ultimately, the Firm was able to resolve the matter without a criminal record for the accused.

In 2017, the Firm secured the judicial interim release of an individual charged with making child pornography. The individual was alleged to have recorded minor members of his family while they were using the restroom. In 2015, Donich Law defended an individual charged with voyeurism in R. v. J.R. [2015]. In that case, the accused was alleged to have requested nude photos from women after posing as a Toronto nightclub owner. The Firm negotiated with the Crown to ultimately have the charges against the accused dropped.

If you have been charged with voyeurism in Kitchener Donich Law can assist you in navigating the Court process. We can assist you in developing the best strategy to defend your case to ensure you receive the best possible outcome.

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.

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CityNews: Jordan Donich comments to CityNews regarding challenges with Sexual Assault Trials in Toronto on August 9, 2017.

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Frequently Asked Questions

What is Voyeurism?
What is Trespass at Night?
What are the Best Defences to Voyeurism in Kitchener?
What are the Penalties for those who are Convicted of Voyeurism in Kitchener?
Is Voyeurism a Sexual Offence?
Will I be Required to Register as a Sex Offender if I am Convicted of Voyeurism?

Additional Resources

Assault
Assaulting a Peace Officer
Sexual Assault Law in Canada
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?

In Canada, voyeurism is considered both a sexual offence and a privacy offence. Section 162(1) of the Criminal Code states that an individual is guilty of the offence of voyeurism if they surreptitiously record or observe another individual;

  • In circumstances that would give rise to a reasonable expectation of privacy; or
  • Where the individual is engaging in sexual activity if they are in a place where they can reasonably be expected to be nude or be exposing their anal region, genitals or breasts or be engaging in sexual activity; or
  • If the person is nude or exposing their anal region, genitals or breasts or is engaging in sexual activity if the recording or observation is done for the purpose of recording or observing the person in that state or engaging in such an activity; or
  • If the observation or recording is done for a sexual purpose.

A common example of voyeurism in Kitchener is one individual secretly recording another person in a situation where they would have a reasonable expectation of privacy, such as inside a public restroom. Another common example is individuals who use recording devices to record up the skirt or dress of strangers in public.

What is Trespass at Night?

The offence of trespass at night is outlined in section 177 of the Criminal Code. The Code states that an individual has committed this offence when they, without lawful excuse, prowls or loiters on the property of another person near a dwelling house situated on that property, at night. Essentially, this section makes it a crime to be on another person’s residential property, near their home at night, without permission.

In some cases, those who are charged with voyeurism will also be charged with trespassing at night. For example, an individual who is committing voyeurism may also be charged with trespass at night if they are on the property of the complainant while committing the voyeurism offence.

Trespassing at night is a summary conviction offence. Those who are convicted will be sentenced to a maximum of two years less a day in prison, up to a $5,000 fine, or both. Whether or not the Court will sentence an offender to custody will depend on a number of factors including; the personal characteristics of the accused, the nature and severity of the allegations, the degree to which the complainant’s privacy was invaded, the criminal history of the accused and any other mitigating or aggravating factors presented to the Court.

What are the Best Defences to Voyeurism in Kitchener?

In Canada, voyeurism is considered a sexual offence. In Kitchener, those charged with sexually based offences are prosecuted aggressively. In some cases, those convicted of voyeurism will be required to register as a sex offender. As a result of the serious implications that may result from a conviction, it is important to develop the best strategy to defend a voyeurism offence as early on in the proceedings as possible.

In developing such a strategy, the most important factors to consider will be what allegations are being made and what evidence is in the possession of the Crown. To defeat any criminal charge, an accused must provide a response to any evidence that tends to suggest that the accused is guilty. For example, if the Crown provides evidence that suggests the accused made a recording for a sexual purpose, it is prudent for the accused to present evidence to prove that the purpose of the recording was not sexual.

Defences commonly used in Kitchener and throughout Ontario to challenge a voyeurism charge include arguing that the complainant did not have a reasonable expectation of privacy in the location they were in, or that the observation or recording was not for a sexual purpose.

To gain a conviction on a voyeurism charge, the Crown must be able to prove that the complainant had a reasonable expectation of privacy in the location they were in at the time the observation or recording was made. Depending where the observation or recording took place, an accused may be able to argue that the complainant did not have a reasonable expectation of privacy. For example, if a complainant had exposed themselves in a public place, they cannot have a reasonable expectation of privacy.

This point was illustrated by an Ontario judge in a 2019 case where an individual was charged with voyeurism for recording a naked woman on a nude beach in Toronto. The accused made no attempt to hide the fact that he was recording the woman and the woman had voluntarily disrobed, knowing she could be seen by others. After finding the accused not guilty, the Court reasoned that the woman had no reasonable expectation of privacy as she was in public and was aware that people could see her. The Court also reasoned that the accused could not be found guilty because he did not surreptitiously record the complainant, as is required by the Criminal Code.

In other cases, an accused may argue that they did not record or observe the complainant for a sexual purpose. If an accused was observing or recording another individual for a legitimate purpose, such as a photographer taking photos for their job, they will not be guilty of voyeurism.

If you have been charged with voyeurism, experienced legal counsel can assist you in developing a strategy to defend your case. We routinely defend those charged with voyeurism and other sexual offences and regularly obtain favourable results for our clients. In some cases, we have even been able to resolve matters without a criminal record for our clients.

What are the Penalties for those who are Convicted of Voyeurism in Kitchener?

Voyeurism is considered a sexual offence in Canada and as a result is prosecuted more vigorously than other criminal offences. Those convicted may be sentenced to periods of incarceration and/or may be required to register as a sex offender. Voyeurism is a hybrid offence. This means that the Crown may elect to proceed summarily or by indictment, depending on the severity of the allegations being made.

In more serious cases the Crown will generally elect to proceed by indictment. If an accused is convicted, they will face a maximum of five years in prison. In more minor cases the Crown will proceed summarily. If the accused is convicted, they will face up to two years less a day in prison, up to a $5,000 fine or both.

Is Voyeurism a Sex Offence?

Yes, voyeurism is considered a sexual offence as well as a privacy offence. It is contained in Part V of the Criminal Code, which is the section of the Code containing all sexual offences.

Will I be Required to Register as a Sex Offender if I am Convicted of Voyeurism?

In some cases, those who are convicted of voyeurism will be required to register as a sex offender under the Sex Offender Information Registration Act (SOIRA). The Criminal Code provides a list of designated sexual offences. An individual who is convicted of a designated sexual offence will be required to register as a sex offender on a mandatory basis. In addition to designated sexual offences, there are other sexual offences that may warrant the requirement that an accused register as a sex offender. Voyeurism is one of these offences. If an accused is convicted of voyeurism, the Crown may make submissions to the Court arguing that the offender should be issued a SOIRA order. A SOIRA order is an order from the Court ordering the offender to register as a sex offender under the Sex Offender Information Registration Act.

Quick Facts

What is Voyeurism?

An individual is guilty of voyeurism when they surreptitiously record or observe another individual in a location that gives rise to a reasonable expectation of privacy, or where the individual is or could be expected to be exposing their genitals, anal region or breasts, or be engaging in sexual activity, or where the recording or observation is for a sexual purpose.

Will I go to Jail for Voyeurism?

In some cases, yes. The maximum penalties associated with a voyeurism conviction in Kitchener range from two years less a day, up to a $5,000 fine or both to five years in prison. Whether or not the Court will impose a custodial sentence on the accused will depend on the accused’s criminal history and the nature and severity of the allegations.

What is a SOIRA Order?

A SOIRA order is an order issued by the Court to an offender who has been convicted of a sexual offence. SOIRA stands for Sex Offender Information Registration Act and is the piece of legislation implementing Canada’s federal sex offender registry. A SOIRA order requires an offender to register as a sex offender under the Act.

How will a Voyeurism Conviction Affect my Life?

In addition to any criminal sanctions that may be imposed on an individual who is convicted of voyeurism, other negative consequences may arise from the existence of a criminal record. In Canada, having a criminal record can affect one’s ability to gain and maintain employment, work or volunteer with certain vulnerable populations and travel outside of Canada.

What are the Most Common ways Individuals Commit Voyeurism?

In Kitchener and across Ontario, one of the most common ways people commit voyeurism is by secretly recording up the skirt or dress of strangers in public. Another common example is individuals secretly recording other individuals inside restrooms or change rooms.

Will I be Forced to Register as a Sex Offender if Convicted?

In some cases, yes. Voyeurism is not a designated sexual offence, meaning an individual who is convicted will not be required to register as a sex offender on a mandatory basis. However, depending on the nature of the allegations, the Crown may make submissions requesting that the Court issue a SOIRA order.

How to get a Voyeurism Charge Dropped?

Whether or not a voyeurism charge will be dropped by the Crown will depend on a number of factors including whether or not the Crown has enough evidence to gain a conviction, the nature and severity of the allegations, the accused’s criminal history and whether or not any injury was caused to the complainant. Experienced counsel can assist you in navigating your case and having the charge(s) withdrawn if possible.

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