Voyeurism: s.162 of the Criminal Code of Canada
When a person is charged with voyeurism under section 162 of the Criminal Code, several common questions arise. We try to answer those frequently asked here:
What is voyeurism under Canadian law?
Voyeurism is secretly observing or visually recording someone in a place where they have a reasonable expectation of privacy. A secret recording or observation is a criminal offence when:
- a person is somewhere where they are or would be expected to be nude, exposing intimate areas of their bodies, or engaged in explicit sexual activities; or
- the observation or recording is for a sexual purpose.
Where does a person have a reasonable expectation of privacy?
Determining where a person has a reasonable expectation of privacy is highly context-dependent. A place that a court determines is private in one case may not be in another. Here are few examples of places that courts have found attract a reasonable expectation of privacy
- a home bathroom;
- a workplace bathroom;
- a bedroom;
- a change room;
- a doctor’s office;
- the basement of a family home in which the accused and victim occasionally engaged in sexual activities;
- a school classroom; and
- a clearly marked shower area that was separated by a door.
When is a recording “secret”?
Courts have interpreted secret according to its ordinary dictionary meaning. Common examples of secret recordings include cameras concealed in bedrooms, bathrooms, change rooms, and hotel rooms.
What is a “sexual purpose”?
To answer this question, courts do not try to get inside the mind of the person accused of voyeurism. Rather, courts ask whether a reasonable person would perceive the observation or recording as intended to cause sexual stimulation to some viewers.
Can I be charged with voyeurism for secretly recording consensual sexual activity?
Yes. Consenting to sexual activity is not the same thing as consenting to the recording of that activity. This may also result in other criminal charges if the intimate images / recordings are shared.
I accidentally left the nanny or pet camera on. Is that voyeurism?
A conviction for voyeurism requires an intent to commit the offence. Accidentally leaving a camera on should not qualify as voyeurism.
What happens if I am charged with voyeurism?
After you are charged, you will likely be released from police custody or released on bail as you await trial.
The two most likely forms of release are an undertaking to a peace officer or a “recognizance” (i.e., bail).
An undertaking to a peace officer or officer in charge requires you to agree to certain conditions upon your release. In voyeurism cases, these conditions almost always include not communicating or contacting the alleged victim.
In many cases, the police will hold you for a bail hearing, which is when they decide to keep you in custody and bring you before a court to decide whether you should be released. The law requires that police bring you before the court within 24 hours. Once you are before the court, a bail hearing may commence right away, or it may be adjourned up to three days if so requested and appropriate. No bail hearing may be adjourned more than three days without your consent.
At a bail hearing, you may have to submit a robust release plan to satisfy the court that you will not flee the jurisdiction or put others at risk.
What happens while I am awaiting trial on voyeurism charges?
Before trial, you will have to make numerous appearances in court to provide updates on the status of the case. These appearances are not an opportunity to discuss the evidence in your case. If you are represented, your lawyer will appear on your behalf.
Usually some time before or soon after the first appearance, the Crown will send you disclosure. Disclosure is all the relevant information about your case that the Crown and police have.
Upon receiving disclosure, your lawyer and the Crown prosecutor will engage in resolution discussions. The Crown generally does not engage in such discussions with unrepresented accused.
Your lawyer will also attend a judicial pre-trial, which is a discussion with the defence, Crown prosecutor, and a judge where the judge aims to narrow the issues and move the parties to resolution.
What are the penalties if I am found guilty of voyeurism charges?
The answer to this question depends on how the Crown prosecutor decides to proceed.
Voyeurism is a hybrid offence. That means the Crown 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 sentence is two years’ imprisonment, less one day. A conviction triggers 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.
Speak to a lawyer if you are charged with voyeurism
Most criminal defence lawyers will gladly speak to individuals charged with criminal offences, such as voyeurism, at no initial charge. The consequences of an offence of this nature can be severe and having legal counsel can minimize or eliminate them.
Call (416) 999-8389 now to speak to one of our experienced lawyers who can discuss options, defences, and ways to manage your charges.
