Voyeurism

A voyeur can be described as a Peeping Tom, or someone who surreptitiously watches through an unsuspecting person's window as they undress. The DoJ states that a voyeur is generally "a person who derives sexual gratification from the covert observation of others as they undress or engage in sexual activities," as defined by the Canadian Oxford Dictionary. Most voyeurs "engage in at least one other sexually deviant behaviour, usually exhibitionism or non-consensual sexual touching or rubbing," the justice department notes. According to the Criminal Code, it is an offence to surreptitiously observe - including by mechanical or electronic means - or make a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if: the person is in a place in which they can reasonably expect to be nude, to expose their genital organs or anal region or her breasts, or to be engaged in explicit sexual activity; the person is nude, is exposing their 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 the observation or recording is done for a sexual purpose. Examples of voyeurism include using a hidden camera to record someone in a hotel shower or public change room or recording images of someone in their bedroom without their knowledge. A person would expect a right to privacy not only in their home but in such places as changing rooms, public bathrooms or the washroom at work. The Supreme Court of Canada has explained that privacy is not an all-or-nothing concept, and that a reasonable expectation of privacy can exist even in a public or semi-public space. Whether an observation or recording invades privacy depends on a range of factors — including where the person was, the form the observation or recording took, its nature, what the person was doing, and the part of the body that was the focus of the recording.

To win a conviction for voyeurism, the Crown must prove that you watched or recorded someone surreptitiously in circumstances where there was a reasonable expectation of privacy.

Whether the Crown also has to prove a purpose depends on the part of s.162(1) being used.

Under s.162(1)(a), the charge depends on where the observation or recording happened. It applies to a place where people can reasonably be expected to be nude or engaged in explicit sexual activity, such as a bathroom or change room. No purpose has to be proven under this part.

Under s.162(1)(b), the charge depends on the person actually being nude or engaged in explicit sexual activity. The Crown must also prove that the observation or recording was made in order to capture someone in that state. That is a purpose element, but it is not a sexual-purpose requirement.

Under s.162(1)(c), the observation or recording must be done for a sexual purpose. In that situation, the Crown must prove that purpose.

ConsentVoluntary agreement to engage in an sexual act is not an element the Crown must prove under s.162(1). The offence turns on the private circumstances of the observation or recording.

Charter issues may also matter if police searched a phone, computer, or other device in a way that violated your rights.

Voyeurism is considered a hybrid offenceAn offence the Crown can proceed with summarily or by indictment., meaning it can be prosecuted as an indictable offenceA more serious type of Canadian criminal offence. or a summary convictionUsed for lesser offences. You will receive a harsher sentence if you are convicted of an indictable offence.

If you are convicted of an indictable offence, the court could impose a maximum sentence of ten years in prison. If convicted by summary conviction, the maximum penalty is two years less a day in prison and/or a $5,000 fine. You may also be placed on the National Sex Offender Registry, which is administered by the RCMP and accessible to police across the country.