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.

What is Sexual Assault?

The offence of sexual assault is outlined in section 271 of the Criminal Code. Sexual assault refers to an assault that is sexual in nature, where the victims sexual integrity is violated. Determining whether the assault in question has the necessary sexual element required for it to be considered a sexual assault, the court must look at whether a reasonable person would recognize the sexual or carnal nature of the assault. The Supreme Court has declared several factors which it has deemed relevant in considering when making this assessment:

  • The body part that was touched by the accused
  • The nature of the contact between the accused and alleged victim
  • The situation in which the contact occurred
  • Words and/or gestures that accompanied the contact
  • Other circumstances surrounding the incident including but not limited to threats or force utilized by the accused
  • The motive of the accused. Whether the motive was for sexual gratification on the part of the accused

It is important to mention that the contact between the accused and alleged victim must be sexual in nature and must violate the victims sexual integrity. Whether or not an assault is deemed a sexual assault will not depend solely on contact with any specific area of the human body.

The Criminal Code outlines three different sexual assault offences, which vary based on the severity of the assault. These three sections are as follows:

  • Section 271 à Sexual Assault (includes all assaults that are sexual in nature and violate the sexual integrity of the victim not covered by the other two provisions)
  • Section 272 à Sexual Assault with a Weapon, Threats to a Third Party or Causing Bodily Harm can occur in four different situations where a person, who while committing a sexual assault, also commits one of the following acts:
    • (a) Carries, uses or threatens to use a weapon or an imitation of a weapon;
    • (b) Threatens to cause bodily harm to a person other than the complainant;
    • (c) Causes bodily harm to the complainant; or
    • (d) Is a party to the offence with any other person.
  • Section 273 à Aggravated Sexual Assault arises when an accused, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.

What are the Penalties for Sexual Assault?

The penalties associated with a sexual assault conviction will depend on the type of sexual assault charge, the severity of the crime committed , the circumstances surrounding the assault and the characteristics of the defendant. The court is required to weigh all relevant aggravating and mitigating factors in the case in order to determine a just sentence for the accused.

If charged with a section 271 sexual assault, the Crown will elect how they wish to proceed; either summarily or by indictment. Which route the Crown selects will depend on the severity of the assault that was committed as well as any other factors which may be relevant. In cases where the Crown proceeds summarily, the maximum penalty associated with a conviction is a maximum of eighteen months imprisonment and a minimum of ninety days imprisonment if the victim of the assault is under the age of sixteen. If the Crown chooses to proceed by indictment, the maximum penalty associated with a conviction is ten years imprisonment, with a minimum punishment of one year imprisonment if the victim is under the age of sixteen.

If charged under section 272 of the Criminal Code with Sexual Assault with a Weapon, Threats to a Third Party or Causing Bodily Harm the maximum penalty that can be imposed upon conviction is fourteen years imprisonment. In addition, the Criminal Code imposes mandatory minimum sentences for section 272 offences that are committed with a firearm, are committed in relation to a criminal association, involve a victim under the age of sixteen and/or are subsequent offences.

If charged under section 273 of the Criminal Code with Aggravated Sexual Assault, the maximum penalty that can be imposed upon conviction is life imprisonment. Mandatory minimum sentences also exist in cases where a firearm was involved, where the assault was committed in relation to a criminal association, where the offence is a subsequent offence and/or in cases where the victim was under the age of sixteen at the time of the assault.

What is Incest?

The offence of criminal incest is outlined under section 155(1) of the Criminal Code and states that an individual commits the offence of incest when he or she engages in sexual intercourse with another individual knowing that individual is related to them by blood. This includes parents, children, siblings, grandparents and grandchildren.

For the crime of incest to have been committed the following factors must be present; there must have been sexual intercourse between two or more individuals who are related to one another by blood (parents, children, siblings, grandparents, grandchildren) and the parties engaging in the intercourse must have had knowledge of the blood relation that they shared.

What is a Peace Bond?

A peace bond is an order issued by the court requiring an accused to remain on good behaviour and keep the peace for a specific period of time. This means that while on a peace bond, the accused cannot be re-arrested for any other offences. In some cases, the court will also attach conditions to a peace bond. The accused will be required to abide by these conditions for the duration of the peace bond order or until otherwise notified by the court. Commonly imposed conditions include; no contact orders between the accused and the victim or location of the alleged offence, prohibiting the offender from possessing firearms, ammunition or explosives, or reporting any changes in residence or employment to the court. A peace bond will often also require the accused post a specified amount of money to the court. By doing so, the accused is agreeing to forfeit that money to the court should he or she breach the conditions of their peace bond.

A peace bond can be ordered by the court under section 810 of the Criminal Code. Section 810 stipulates that a peace bond may be ordered by the court in cases where “an information is laid before a justice or on behalf of any person who fears on reasonable grounds that another person will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property”.

It is important to remember that by entering into a peace bond you will not be left with a criminal record. However, a peace bond will likely appear in a police background check while it is still active. In addition, a breach of the peace bond will likely result in criminal charges being laid which has the potential to result in a criminal record.

What is the Difference Between a s. 810 Peace Bond and a Common Law Peace Bond?

A section 810 peace bond refers to a peace bond which is authorized by statute, specifically the Criminal Code. A common law peace bond on the other hand is issued using the courts common law jurisdiction and is not rooted in any statute. The main difference between the two types of peace bonds is that a s.810 peace bond is limited by the provisions of the statute, whereas common law peace bonds are not. For example, a court can issue a s.810 peace bond for a maximum of one year, which is not the case with common law peace bonds which can be issued for as long as the court desires. In addition, s.811 of the Criminal Code provides remedies for how to handle s.810 peace bond breaches. In situations involving common law peace bond breaches, the courts are left to determine the remedy on a case-by-case basis.

What is Self-Defence?

Self-defence is a statutorily controlled criminal defence that can be utilized as a full defence to many assault charges. If successfully raised, the defendant would be entitled to a verdict of not guilty, as self-defence works as a justification to the actions taken by the accused. This means that though the accused may have assaulted someone, they were justified in doing so based on their own self-preservation, and as a result no crime has been committed. It is important to remember that the force used in a self-defence scenario must be proportionate to the harm you are trying to protect from.

Section 34 of the Criminal Code outlines the criminal defence of self-defence. It states that a person is not guilty of an offence where their actions, which would normally constitute a criminal act, fulfil the following three criteria;

  1. They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
  2. The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
  3. The act committed is reasonable in the circumstances.

Section 34(2) of the Criminal Code states that when the court is determining whether or not an act constituted self-defence they should consider the characteristics of the accused, the other individual in the scenario and the circumstances surrounding the interaction. The Code suggests that the court also consider other factors that may help determine whether or not the actions on the part of the accused were reasonable under the circumstances. The Code lists the following factors;

    1. The nature of the force or threat;
    2. The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
    3. The person’s role in the incident;
    4. Whether any party to the incident used or threatened to use a weapon;
    5. The size, age, gender and physical capabilities of the parties to the incident;
    6. The nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
    7. Any history of interaction or communication between the parties to the incident;
    8. The nature and proportionality of the person’s response to the use or threat of force; and
    9. Whether the act committed was in response to a use or threat of force that the person knew was lawful.

416-DEFENCE | 416-333-3623

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