The offence of voyeurism is outlined in section 162(1) of the Criminal Code.
A person commits voyeurism when they secretly observe or record another person, without the person’s consent, in a private situation, and the person’s genitals or breasts are exposed, or they are engaging in sexual activity.
A person will also be guilty of this offence if they secretly observe or record another person, without that person’s consent, and the person is in a location or situation where they would reasonably be expected to be nude or engaging in sexual activity.
Finally, a person will be guilty of voyeurism if they secretly record or observe another person without that person’s consent, the person is in a place where they would expect privacy, and the recording or observation is done for a sexual purpose.
Person A places a hidden camera in the changeroom of a public pool. Person A’s camera catches person B changing in the change room. Person A is guilty of voyeurism in this situation even if the camera does not record person B naked. This is because person B has a reasonable expectation of privacy in the change room, as the change room is somewhere an individual can reasonably be expected to be nude.
Person A secretly peeks into the bedroom window of person B without person B knowing. This is an offence whether or not person B is nude or engaging in sexual activity.
Person A uses their smartphone to secretly film up the skirt of woman at the mall. Person A is making the recordings for a sexual purpose.
R. v Bahamonde,  ONSC 7526
In R. v Bahamonde, the offender was charged with voyeurism after law enforcement located several photos and videos of individuals who had been secretly recorded by the offender. The photos and videos consisted of “up skirt” shots of women on the TTC and at the offender’s place of employment. All photos and videos were taken without the knowledge of the victims. The court determined the photos and videos were taken for a sexual purpose.
R. v. Correa,  ONSC 1330
In R. v. Correa, the offender was convicted of voyeurism, among other charges, after using a ladder to peer into the bedroom window of a teenage girl he did not know. When arrested, the offender had condoms, Vaseline and rope in his backpack. The court determined the observation of the young girl was for a sexual purpose.
Offence Specific Defences
Lack of Sexual Purpose
If an individual is charged with voyeurism and accused of recording other individuals without permission for a sexual purpose, the accused may argue that they were not recording for a sexual purpose.
For example, if an individual was secretly recording woman in the mall and was charged with voyeurism, he may argue that he was filming for a social experiment and not for a sexual purpose.
No Reasonable Expectation of Privacy
Another defence for voyeurism is to argue that the victim had no reasonable expectation of privacy in the location they were observed or recorded in.
For example, a business owner places a camera inside a storage room. Two employees engage in sexual activity in the room and the activity is recorded. The business owner has not committed voyeurism because the employees had no reasonable expectation of privacy in the storage room.
Recording or Observation was not Secret
For an individual to be convicted of voyeurism the Crown must prove that they secretly observed or recorded another person. If the recording or observation was not done in secret and the complainant knew they were being recorded or observed, the accused cannot be convicted.
For example, an individual on a public nude beach is taking photos of the scenery. There are nude people on the beach, some of whom are captured in the photos. The individual is not attempting to hide the fact that he is taking photos. The nude individuals on the beach are free to leave the area or cover up if they no longer wish to be seen or have their photo taken.
To convict an accused of voyeurism, the Crown must prove that the accused recorded or observed another person without that person’s consent. If the individual being recorded or observed was aware of and consented to the observation or recording, the accused cannot be convicted.
For example, while engaging in sexual intercourse, person A takes out a camera and asks person B if they can record. Person B consents. Person A has not committed voyeurism, as person B is aware of and consented to the recording.