Voyeurism criminalizes the secret observation or recording of an individual where a reasonable expectation of privacy exists.

Voyeurism: Criminal Code Provisions (s. 162)

Criminal Code Provision (s. 162)

Every one commits an offence who, 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 genital organs 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.

Understanding Voyeurism

Voyeurism criminalizes the act of secretly watching or recording individuals in circumstances where they anticipate privacy. The crime extends beyond private residences and can apply to locations where individuals are dressed but still have a reasonable expectation of privacy (e.g., schools, gyms, public restrooms).

Examples of Voyeurism include:

• Placing hidden cameras in sleeping areas, restrooms, or fitting rooms.
• Secretly recording of sexual acts without a partner’s awareness.
• Taking photos of intimate body areas without permission using a phone or camera.

What the Crown Must Prove

To secure a conviction, the prosecution must demonstrate beyond a reasonable doubt:

1. The defendant secretly watched or filmed someone else.
2. The complainant was in a circumstance where privacy could be reasonably anticipated.
3. The intent was sexual, or the recording documented nudity, sexual conduct, or private areas without permission.

Consent and Defences for Voyeurism

Consent and the expectation of privacy are crucial elements in Voyeurism cases:

• Consent: Consent must be voluntary, informed, and ongoing. A person cannot give consent when they are unaware that they are being recorded. If the complainant is aware that they are being recorded, voyeurism generally does not exist.
• Privacy Expectations: In voyeurism cases, courts assess whether the complainant had a reasonable expectation of privacy considering the circumstances.
• Withdrawal of Consent: Regardless of the fact that consent was initially provided, it can be withdrawn at any time. Continuing to record after consent has been revoked becomes unlawful.
• Sexual Purpose: Secretly creating or keeping intimate images, even in a consensual relationship, can still constitute voyeurism if not fully agreed upon.

Sentencing for Voyeurism

Voyeurism is a hybrid offence.

1. Summary Conviction – If the offence is being prosecuted summarily, the maximum penalty is 2 years less a day in jail.
2. Indictment – If the Crown proceeds by way of Indictment, the maximum penalty is 5 years in prison.
3. Additional Consequences – Along with the sentence, an offender may face a mandatory inclusion on the Sex Offender Registry, DNA orders and weapon prohibitions, and court orders may restrict internet and camera use.

Landmark Case for Voyeurism

In the case of R. v. Jarvis, [2019] SCC 10, the accused, a teacher, secretly filmed students with a camera placed in a pen aimed at their chests. The Supreme Court held that even though the school is a public setting, the students still had a reasonable expectation of privacy. The judgment established that privacy depends on context, purpose, and how the recording was made. Consent must be explicit, voluntary, and informed. People cannot consent to something they are not aware of happening.