VOYEURISM DEFENCE LAWYERS IN TORONTO

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TORONTO VOYEURISM LAWYER

Trespassing at night offences include loitering, prowls and voyeurism. Trespassing at night is specifically dealt with in the Criminal Code and is defined as anyone who, without lawful excuse, the proof of which lies on him, loiters or prowls at night on the property of another person near a dwelling-house situated on that property. The Criminal Law Group recently secured a full withdrawal of Voyeurism, where the accused posed as the owner of a Toronto Strip Club, attempting to solicit nude pictures of women in its R. v. J.R. [2015]. We frequently handle cases where the accused is alleged to have recorded women in private settings, generally with a smart phone. We also have experience defending a range of allegations where the recording is alleged to be in a public setting, including on public transit.

The Firm has also been retained by businesses facing allegations of secretly recording customers in private spas and rental apartments. It has handled allegations where cameras are disguised as clocks and alarm systems. These items are often discovered by Municipal compliance officers, and police, who use special forensic lighting instruments to unveil this technology.

The Firm recently resolved a University of Toronto student charged with Voyeurism for secretly recording women on the TTC escalator without a Criminal Record in its R. v. S.H. [2015].

Trespassing, loitering and prowling by night all share a particularly adverse stigma which may lead to significant social, employment and travel consequences. We frequently observe law abiding citizens without criminal records confronted with these allegations, sometimes under the influence of alcohol. These individuals are not criminals and were simply engaging in behavior, which they may not have even realized was criminal.

Global News: Can an airline tell you to stop recording and delete a cellphone video?

VICE News: An Image Site is Victimizing Women and Little Can be Done. 

Frequently Asked Questions

Is Voyeurism a Sexual Offence?
What is Observation for a Sexual Purpose
What is a Visual Recording?
Is a Recording Required for a Conviction of Voyeurism?
What are some Exemptions to Voyeuristic Recordings?
What is Printing and Publishing Voyeuristic Recordings?
What are possible defences to an allegation of Voyeurism?
Are the Motives of Someone Charged with Voyeurism Relevant?
What are some of the Penalties for Voyeurism?
What is the SOIRA s.490,012 order?
Can I check the status of my application?

Additional Resources

Assault
Consequences of a Criminal Record
Domestic Abuse
First Offenders
Immigration Consequences
Keeping Charges Private
Travel & US Waivers

Is Voyeurism a Sexual Offence? 

Yes, Voyeurism is a Sexual Offence. It is an offence under Part V of the Criminal Code, which is the section dealing with sexual offences. Whether or not Voyeurism is a Sexual Offence does not have many practical effects for the accused. It is more relevant to drafters of the law in defining the policy objectives behind the offence.  If it is classified as a Sexual Offence that means that the purpose of criminalizing it is to prevent the sexual exploitation of victims.

Voyeurism is somewhat different than other Sexual Offences in that it is both a privacy offence and a Sexual Offence. It is meant to protect both the privacy interests of people as well as to prevent sexual exploitation.

Voyeurism is an offence under s.162 of the Criminal Code. It occurs when the accused surreptitiously observes – including by mechanical or electronic means – or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

  1. The person is in a place in which a person can reasonably be expected to be nude, to expose his or her genitals or anal region or her breasts, or to be engaged in explicit sexual activity;
  2. The person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or
  3. The observation or recording is done for a sexual purpose.

As such, there are two requirements that must exist in every situation – (i) surreptitious recording or observing, (ii) in circumstances that give rise to a reasonable expectation of privacy. In addition, there has to be one of the three situations described in the subsections.

Subsection (a) usually applies where the accused did not actually observe or record others while nude or engaged in explicit sexual activity, but did so in a place where a person can reasonably be expected to be nude. On the other hand, subsection (b) applies where the observation or recording is taken of a person who is actually nude or engaged in explicit sexual activity. Subsection (c) is the residual category. It applies where the observation or recording is not of a nude person and not of a person in a place where they can be expected to be nude, as long as it is done surreptitiously, in circumstances that give rise to a reasonable expectation of privacy, and for a sexual purpose.

A Visual Recording under this offence includes a photographic, film or video recording made by any means.

“Surreptitious” observing means that it is done in secret or by stealth, that it is clandestine. This is tied closely together with the requirement that the person being observed or recorded is in circumstances that give rise to a reasonable expectation of privacy. Whether there is a “reasonable expectation of privacy” is determined on the basis of the character of the location or space where the viewing occurs, and the usual activities of that place. For example, a couple in a bedroom would have a reasonable expectation of privacy. This is because any reasonable person would understand that unless otherwise told, a couple engaged in sexual activities would not wish to be observed.

There are some places however where it is less clear that there is a reasonable expectation of privacy. One case found that people in a public park have a reasonable expectation of privacy, such that a person who surreptitiously records them for a sexual purpose is guilty of voyeurism under s.162(1)(c). In another case, the court decided that a restaurant storage room is not a place where a person can “reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity” as per s.162(1)(a).

What is Observation for a Sexual Purpose? 

Observation or Recording for a Sexual Purpose is the third way in which Voyeurism can occur, under s.162(1)(c). Voyeurism under this subsection has four elements:

  • Recording or observation
  • Done surreptitiously
  • Of a person who is in circumstances that give rise to a reasonable expectation of privacy
  • The observation or recording is for a sexual purpose

In order to prove the Sexual Purpose, the Crown has to put forward evidence of the accused’s purpose. This can be done through circumstantial evidence, but in order to be successful, the only rational conclusion form the evidence has to be that there was a sexual purpose. For example, in one case, the Crown proved its case by submitting evidence that the accused was naked in his van while recording, and that there was a box of Kleenex and wadded tissues around him in the van. The court decided that the only rational conclusion from this evidence was that the recording was done for a sexual purpose. In another case a man was arrested for taking pictures of women’s buttocks on a beach. In that case, the court found that there was not enough evidence of a sexual purpose. The court decided that while taking pictures of a woman’s buttocks suggests a sexual purpose, it is not the only rational conclusion from the evidence; that the purpose may have been artistic and not sexual gratification.

What is a Visual Recording? 

A Visual Recording under this offence includes a photographic, film or video recording made by any means.

Is a Recording Required for a Conviction of Voyeurism?

No, Voyeurism can be committed through observation alone. Observation can be done unaided, by simply looking, or through mechanical or electronic means, such as with a camera or binoculars. For it to be an offense, the observation has to be done surreptitiously (secretly), in a place where a person has a reasonable expectation of privacy and either: (a) the person being observed is in a place in which a person can reasonably be expected to be nude; (b) the person being observed is nude, engaged in explicit sexual activity, etc; or (c) the observation is done for a sexual purpose.

What are some Exemptions to Voyeuristic Recordings? 

The only exemption to Voyeuristic Recordings is under s.162(3). The exemption states that s.162(1)(a) and (b) do not apply to a peace officer who is acting under the authority of a warrant under s.487.01. Subsections (a) and (b) deal with observation and recording of persons who are (a) in a place where they can reasonably be expected to be nude or (b) are actually nude or engaged in explicit sexual activity. A warrant under s.487.01 is a general warrant under which a judge can authorize the search and seizure of property.

What is Printing and Publishing Voyeuristic Recordings?

Printing and Publication of Voyeuristic Recordings is an offence under s.162(4) of the Criminal Code. It occurs when a person, knowing that a recording was obtained by the commission of Voyeurism, prints, copies, publishes, distributes, circulates, sells, advertises or makes available the recording. Alternatively, it occurs when the person has the recording in his or her possession for the purpose of printing, copying, publishing, distributing, circulating, selling or advertising it or making it available.

Aside from the actual printing, copying, publishing, etc. or having the recording in his or her possession, a person must either know that the recording was obtained by the commission of the offence of Voyeurism; or possess the recording for the purpose of printing, copying, publishing, etc.

What are Possible Defences to an Allegation of Voyeurism?

The Criminal Code states under s.162(6) that it is a defence to an allegation of Voyeurism that the acts that are alleged to constitute the offence serve the public good and do not extend beyond what serves the public good. The analysis focuses on the effect of the activity and not on the motives of the accused. A “public good” is something that is “necessary or advantageous to religion or morality, to the administration of justice, the pursuit of science, literature or art, or other objects of general interest” (R v Sharpe). A public good would be for example, a recording, or possession of a recording, for educational or artistic purposes. However, this defence does not arise often and is difficult to establish.

Instead, a more effective defence is to try to refute one of the elements of the offence. For example, if a person is charged with observing for a sexual purpose under s.162(c), he or she can claim that there was no sexual purpose. In the case mentioned in Question #3, the defendant successfully argued that the act of surreptitiously taking photographs of female buttocks on a beach itself, without other evidence, was not necessarily indicative of a sexual purpose. Another example is the case described in Question #1, where the accused was charged with surreptitious observing of people in a place where they would reasonably be expected to be nude, under s.162(1)(a). The accused successfully argued that the storage room of a restaurant is not a place in which a person could reasonably be expected to be nude or engaged in sexually explicit activity.

Are the Motives of Someone Charged with Voyeurism Relevant? 

No, motives are not relevant. They do not play a role in determining guilt of the accused. Furthermore, s.162(7)(b) explicitly states that if the defence of public good is raised under s.162(6), that motives of the accused are irrelevant.

What are some of the Penalties for Voyeurism? 

The Penalties for Voyeurism depend on whether the case is prosecuted by summary conviction or as an indictable offence. Whether the case is prosecuted by summary conviction or by indictment is at the discretion of the Crown. Generally, the decision is made based on the seriousness of the particulars of the offense. If the case is prosecuted by indictment, the possible penalties are usually higher than on summary conviction. The Criminal Code only sets out the maximum possible penalties for indictment, and does not set any out for summary conviction (although summary conviction would usually result in a lower penalty). The maximum penalty is 5 years’ imprisonment if the case is prosecuted as an indictable offense.

The actual sentence given upon conviction depends on the aggravating and mitigating factors of the case. For example the age of the accused, whether its his or her first offence, remorse, etc.

What is the SOIRA s.490,012 Order? 

SOIRA stands for the Sexual Offender Information Registration Act. SOIRA establishes a national database that registers sexual offenders. The information that is recorded in the database is available to all accredited Canadian police agencies. The purpose of the database is to assist police in future investigations of sexual offences by providing information that might be of investigative assistance. For example, during an investigation for a reported sexual offence, police use the database to identify possible suspects known to reside near the site where the offence was committed.

The information that is collected in the database can include the offender’s:

  • name and alias
  • date of birth and physical description
  • address of main and secondary residences
  • telephone numbers
  • address of educational institution
  • employment type and address
  • vehicle information (owned or used regularly)
  • name and address of offender’s volunteer organizations
  • offence information
  • photograph of the offender is taken
  • Driver’s Licence
  • Passport Information

s.490.012 of the Criminal Code sets up the mechanism by which convicted sexual offenders are required to register with the SOIRA database. The Criminal Code has a list of “designated offences”, and if a person is convicted of one of them, or found not criminally responsible on account of mental disorder, he or she is issued a SOIRA order. The SOIRA order requires the offender to register with the database, and re-register annually for a specified time period (see below).

The “designated offences” include:

  • 151 Sexual Interference
  • 152 Invitation to Sexual Touching
  • 153 Sexual Exploitation
  • 155 Incest
  • 163.1 Child Pornography
  • 173(2) Exposure
  • 271 Sexual Assault
  • 272 Sexual Assault with a Weapon, Threats to a Third Party or Causing Bodily Harm
  • 273 Aggravated Sexual Assault

Also, if a person is convicted of one of the following offences, and the Crown establishes beyond a reasonable doubt that the offence was committed with the intent to commit one of the offences listed above, the person will also be issued a SOIRA order. These offences include, among others:

  • 162 Voyeurism
  • 173(1) Indecent Acts
  • 231 Murder
  • 234 Manslaughter
  • 264 Criminal Harassment
  • 279 Kidnapping
  • 279.01 Trafficking in Persons

For a complete list of designated offences see Criminal Code s.490.011.

Once the SOIRA order is issued, the offender must register within 7 days of conviction and/or release from a custodial institution. The offender must re-register annually, and he/she must notify their registration center every time they change addresses, legal name, employment or volunteer activity. They must also register all domestic and international travel of 7 days or more.

Failure to register, providing false information or failure to update information is a criminal offence. If prosecuted by indictment, the maximum penalty is a $10,000 fine and/or 2 year’s imprisonment. On summary conviction, the maximum penalty is a $10,000 fine and/or 6 months’ imprisonment.

416-DEFENCE | 416-333-3623

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