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When Capturing a Photograph or a Video can Land you in Jail

Canada has codified its criminal offences into what is referred to as the Criminal Code of Canada. This blog will focus on one criminal offence in particular, namely, “voyeurism”.

So what is voyeurism? The term generally refers to the practice of one gaining sexual pleasure from watching others for instance, while naked or engaging in sexual activity. Let’s look at how the Criminal Code specifically describes the offence of voyeurism.

The Criminal Code of Canada on Voyeurism

Section 162 of the Criminal Code states as follows:

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.

Definition of visual recording

(2) In this section, visual recording includes a photographic, film or video recording made by any means.

Printing, publication, etc., of voyeuristic recordings

(4) Every one commits an offence who, knowing that a recording was obtained by the commission of an offence under subsection (1), prints, copies, publishes, distributes, circulates, sells, advertises or makes available the recording, or 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.

As evidenced above, taking a photograph, recording and/or publishing sensitive images are criminal offences in Canada. If convicted, there are severe penalties in place. Section 162(5) of the Criminal Code states with respect to the punishment as follows:

Punishment

(5) Every one who commits an offence under subsection (1) or (4)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

Depending on whether the Crown prosecutor assigned to a case decides to prosecute the matter summarily or by indictment, the corresponding punishment comes into play. If the Crown proceeds by indictment (which means a more serious offence has been committed), then a conviction of the offence of voyeurism could attract a term of imprisonment of up to five years.

Defences to the Criminal Offence of Voyeurism

The role of criminal defence lawyers at Aitken Robertson is to advance every applicable defence in a client’s case. To do this, we rely on common law and statute, specially, the Criminal Code. Section 162(6) & (7) of the Criminal Code states with respect to the available defences as follows:

Defence

(6) No 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.

Question of law, motives

(7) For the purposes of subsection (6),

(a) it is a question of law whether an act serves the public good and whether there is evidence that the act alleged goes beyond what serves the public good, but it is a question of fact whether the act does or does not extend beyond what serves the public good; and

(b) the motives of an accused are irrelevant.

Our role as criminal defence lawyers is to communicate to the Crown the specific details and relevant information in your case to assist in defending your matter. Our goal is to help you avoid a criminal record and to settle your matter outside of the formal court process.

The Aitken Robertson Team for Your Defence

The firm of Aitken Robertson practices almost exclusively in criminal law. Accordingly, our lawyers are trained, knowledgeable and understand how to defend against allegations of criminal offence. Take advantage of our free 30-minute consultations and ask us how we can help you fight your charges. What do you have to lose?

Yasmine Al-Zaman

Yasmine’s patience, compassion and understanding allow her to work collaboratively and effectively with her clients. She appreciates the level of fear and confusion most people feel when confronted with the legal system. With that in mind, Yasmine puts her best foot forward to offer quality legal services.

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