The offence of publishing a voyeuristic recording is outlined in section 162(4) of the Criminal Code.
A person commits the offence of publishing a voyeuristic recording when they print, copy, publish, distribute, circulate, sell, advertise, or make available a recording obtained by committing the offence of voyeurism, or when they have a recording obtained by committing the offence of voyeurism for the purpose of publishing it.
Person A secretly records person B while they are showering, and person C gets the recording from person A to sell it to others online. Here, both person A and person C have committed the offence of publishing voyeuristic recordings.
Person D records person E masturbating without person E knowing and makes copies of the recording so that they can send it to all their friends.
Person D secretly records person G while person G is in their bedroom and advertises on their social media that they will send the recording to anyone who asks for it.
R. v. P.D., 2011 ONCJ 133
In R. v. P.D., the accused was charged with one count of publishing a voyeuristic recording when he posted a sexually explicit video that he had made of the complainant without her knowledge onto his Facebook page and sent 13 friends and family an email containing the video.
R. v. Keough, 2011 ABQB 312
In R. v. Keough, the accused was convicted of one charge of publishing a voyeuristic recording when he made three copies of a sexually explicit video without the knowledge or consent of the people in the video.
Offence Specific Defence(s)
Where the recording was not obtained by committing the offence of voyeurism, the person publishing this recording will not have completed the offence of publishing voyeuristic recordings.
Where the person does not intend to make the voyeuristic recording available to others and has not copied, printed, advertised, or shared it with anyone, they may not have completed the offence of publishing voyeuristic recordings.
If the person is publishing the voyeuristic recording for the public good, then the person may not be convicted of the offence of publishing voyeuristic recordings. For example, where the person is a law enforcement agent creating copies of the recording to preserve as evidence, they will not be convicted of the offence of publishing voyeuristic recordings.