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Voyeurism: can be described as deriving pleasure from watching or recording images of someone engaged in private activities without their consent. A voyeur typically gets sexually aroused watching people who are undressing, naked or engaging in sexual activities. According to the Department of Justice (DoJ), voyeurism can be defined as a behaviour and as a sexual disorder. Under section 162 (1) of the Criminal Code, those guilty of voyeurism may face a maximum jail sentence of five years. A conviction will result in a criminal record and possible inclusion on the National Sex Offender Registry.
Table of Contents:
What is 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 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.
A 2019 Supreme Court of Canada case provided the test for what is a “reasonable expectation of privacy.” The court wrote that the “circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred … ‘privacy,’ as ordinarily understood, is not an all-or-nothing concept, and being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording.”
“Rather, whether observation or recording would generally be regarded as an invasion of privacy depends on a variety of factors, which may include a person’s location, the form of the alleged invasion of privacy, the nature of the observation or recording, the activity in which a person is engaged when observed or recorded and the part of a person’s body that is the focus of the recording.”
What the Crown must Prove
To win a conviction for voyeurism, the prosecutor must demonstrate you watched or recorded someone surreptitiously while they were in a place they believed was private.
The Crown must also prove the observation or recording was made for a sexual purpose and you did not have consent from the victim.
You may be able to argue your rights under the Charter of Rights and Freedoms was violated if police conducted an illegal search of your phone or computer to find the evidence used against you.
Treated as a Summary Conviction or Indictable Offence
Voyeurism is considered a hybrid offenceAn offence prosecuted either as a summary conviction or as an indictable offence, meaning it can be prosecuted as an indictable offenceIndictable offences are more-serious criminal offences or a summary convictionUsed for lesser offences. You will receive a harsher sentence if you are convicted of an indictable offence.
Penalties for Voyeurism
If you are convicted of an indictable offence, the court could impose a maximum sentence of five years in prison. The penalty is less severe if you are found guilty of a summary conviction. You may also be placed the National Sex Offender Registry, which is administered by the RCMP and accessible to police across the country.
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Glossary of Legal Terms
Hybrid offence
Hybrid offences fall between a summary and an indictable offence. The Crown prosecutor chooses whether to treat the offence as a summary or indictable offence.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
