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What Is Voyeurism?
Voyeurism is defined as deriving pleasure from observing people while they engage in private activities without their consent. It is a criminal offence. However, in order for the act to be true, Voyeurism, the person or people being watched must not know they are being watched. Simply having voyeuristic desires isn’t a crime.
Voyeurism includes but is not limited to the act of secretly recording or taking photographs of a person where there is a reasonable expectation of privacy.
Voyeurism is either behavioural or a sexual disorder, while in general, a voyeur is known as a person who obtains sexual gratification by watching someone undress or engage in sexual activity. The offence in this context is related to three things within the definition, the secretive nature of the observations; the private and intimate nature of what is observed; and sexual gratification.
The crime of Voyeurism was added to the Criminal Code in the early 2000s (notably the same period when the use of cameras and electronic media was booming). This surreptitious manner of recording a person is clearly a criminal offence under section 162(1) of the Criminal Code of Canada when:
- the victim of Voyeurism is in a place where they might get naked, expose their intimate regions (genital region, anal region, or breasts), or be involved in sexual activity and,
- the recording/videotaping is accompanied by the element of sexual purpose.
What is the potential sentence for Voyeurism?
The answer to this question depends on how the Crown prosecutor decides to proceed. As Voyeurism is a hybrid offence, it means the Crown’s prosecutor can choose to pursue the case by indictment or summarily.
Indictments follow conduct that the Crown deems very serious. A summary offence is the Canadian equivalent of a misdemeanour and is a matter the Crown aims to address relatively quickly.
With hybrid offences, the Crown has complete discretion to decide whether to proceed by indictment or summarily. A court cannot intervene.
If the Crown proceeds by indictment, the maximum sentence is five years imprisonment; if the Crown proceeds summarily, the maximum penalty is two years imprisonment, less one day. A conviction triggers a registry on the national sex-offender database (SOIRA), which can have significant and lasting consequences far beyond the sentence itself.
There is no mandatory minimum sentence. However,
the cases involving child pornography or sexual assault offences are dealt with by way of indictment. An accused who is guilty of Voyeurism would retain a permanent criminal record.
Distributing (selling, copying, printing, etc.) voyeuristic recordings and images is a severe voyeurism offence under Section 162(4) of the Code. A person will be guilty of Voyeurism if he/she knowingly distributed, advertised, printed, sold, and circulated voyeuristic content. Similarly, a person who receives voyeuristic images or videotapes will also be blameable under the Criminal Code.
Elements Of The Offence Of Voyeurism
To be charged for Voyeurism, the content must be recorded without the victims’ knowledge or consent, and there needs to be a reasonable expectation of privacy. The offence of Voyeurism requires the fulfillment of both of these elements for a conviction to occur. Intention to commit the offence, however, serves as the basic ingredient for the conviction of Voyeurism.
Let’s suppose a young couple is engaged in sexual activity in an alleyway, and the security guard is watching through one of the surveillance cameras of the building and observing the young couple. It would likely not be said that the security guard committed Voyeurism as there is no reasonable expectation of privacy in public.
On the flip side, a voyeurism charge would likely follow if hidden security cameras were installed in the living rooms by the hotel employees to observe customers within their hotel rooms as the hotel employee might have intended to record the personal space activities of their customers.
What Does The Term “Reasonable Expectation Of Privacy” Imply?
In 2019 in R v Jarvis, the Canadian Supreme Court elucidated the meaning of reasonable expectation of privacy by stating that the circumstance, position, place, or location where they are presumably immune from being recorded or observed.
In determining the reasonable expectation of privacy, the court highlighted a few factors that are of paramount importance in the context of alleged Voyeurism:
- the place where the subject was when they were seen or recorded;
- Consent to or knowledge of potential observation or recording;
- the method used for observation or recording;
- any laws, ordinances, or principles that applied to the aforementioned observation or recording;
- the existent content of the observation or recording;
- a statement about why an observation or recording was made; and
- the connection between the person being watched or being recorded and the one doing the watching or recording;
Note: Please be advised Voyeurism includes the aforementioned factors but is not limited to them. It is not an exhaustive list, yet they may be relevant in the cases of accused Voyeurism.
What Places Will Elicit A Reasonable Expectation Of Privacy?
There is almost always a fair expectation of privacy in places where a person might expect to be naked, such as:
- Changing/Trial room
- Hospital’s checkup rooms
- Almost everywhere in the vicinity of your personal property
Do Virtual Spaces Or Video Chats Confer The Reasonable Expectation Of Privacy?
However, in the wider picture, the victim’s location may not be the sole facet in determining the reasonable expectation of privacy. That is to say, in R v Trinchi (2019), the Ontario Court of Appeal stumbled upon a similar case of shaping the dilemma of reasonable expectation of privacy around a virtual space.
The court unanimously ruled that virtual spaces give rise to reasonable anticipation of privacy. Moreover, the victim’s lack of consent and involuntariness in being screenshotted on webcam video chat accompanied by the distribution of private pictures via email by the accused was undoubtedly the crime of Voyeurism under section 162(1) of the Criminal Code.
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Being charged with any offence, but particularly an offence of a sexual nature can be a highly traumatizing ordeal for an accused and their family. It can be incredibly challenging to handle such matters on your own, therefore, it’s always a wise option to engage the services of a learned criminal attorney who can ensure a just outcome in your criminal proceedings. Contact the criminal lawyers at Ayaz Mehdi Professional Corporation if you are facing allegations of Voyeurism.
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