Do we all have voyeuristic tendencies? Do we like to “people watch”? Do we turn away when a couple is kissing on the subway or do we look? Do you sneak a photo of that “hottie” standing in line and then send it to a friend? I am sure that many would agree that smartphones have changed the way that we observe our surroundings and others. When does watching and recording cross the line? When does it get you in trouble with the law? What if you had no intention to watch or record for an improper purpose? Keep reading to learn more about this topic and how it interplays with criminal law.
Canadian Criminal Code
In the Criminal Code, Voyeurism can be found under PART V – Sexual Offences, Public Morals and Disorderly Conduct. According to Section 162 (1) of the Criminal Code:
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
(a) 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;
(b) 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
(c) the observation or recording is done for a sexual purpose.
With that said, it would be unreasonable to have an expectation of privacy if you decide to “make out” with your partner on the subway. It would also be unlikely that you would get naked on the subway and “go at it” with your partner. If you did, that may warrant another article about another criminal offence.
This may lead you to believe that voyeuristic acts occur in places like a bedroom or a bathroom but what about in a public park? According to CTV News, a 35-year-old man was charged with one count of voyeurism in July, 2019. He was seen secretly recording young children on his phone in a local park and will appear in court this October, 2019 So, think twice before you whip your phone or anything else out as this may get you in legal trouble and forever change your future.
Consequences of Conviction
Voyeurism is a serious crime, punishable on summary conviction and or indictable conviction and liable to imprisonment for a term not exceeding five years; it does not end there. Voyeurism is a criminal offence of a sexual nature and depending on the circumstances, a perpetrator may end up on the National Sex Offender Registry. This can have severe economic and social consequences on an individual’s life. If you believe that you have been unfairly charged with voyeurism, how do you vindicate your rights?
Well, the Criminal Code carves out an exception under s. 162(6) which states that “[n]o person shall be convicted of an offence under this section if the acts that are alleged to constitute the offence serve the public good and do not extend beyond what serves the public good”. This is a narrow exception, what does this mean for your case?
A criminal defence lawyer has the knowledge and experience to challenge this particular charge. For example, your lawyer will aim to challenge the Crown’s ability to prove every element of the offence. One such element is that for instance, the observation or recording was for a sexual purpose. Your lawyer will question how the Crown intents to prove this particular element. Another element would be that the recording or observation was made surreptitiously. Your lawyer will demonstrate the weaknesses in the Crown’s case to make out the offence, amongst other strategies.
Contact the Aitken Robertson Experienced Criminal Defence Team for Assistance
If you have been charged with voyeurism, call our office to set up your free 30-minute consultation. Our team of experienced criminal lawyers will work steadfastly to provide you with a good legal strategy and a solid defence.