In today’s high-tech world, where cameras are embedded in just about every digital device, taking photos and videos has never been easier. See something interesting? Whip out your cell phone and snap a quick pic or video. Do you want to keep tabs on what’s happening in your home or some other location? You can install a spy camera just about anywhere, take all the photos and videos you want, and remotely link it to your cell phone or other devices for live viewing or recording.
However, if your camera surreptitiously captures images of somebody naked or engaged in sexual activity, you could be charged with the sexual offence of voyeurism. This charge under Canada’s Criminal Code also covers the secret observation of someone naked or engaged in sexual activity, the offenders of which used to be referred to as “Peeping Toms.”
You do not want to be charged by police as a Peeping Tom—digital or not. The criminal defence lawyers of the Greater Toronto Area’s Mass Tsang LLP advise you that a conviction on voyeurism charges carries significant penalties, including mandatory inclusion on the Ontario Sex Offender Registry (OSOR) and likely inclusion on the federal sex offender registry.
If police charge you with voyeurism in Ontario, you should seek out the services of an experienced sexual assault criminal defence lawyer. With over 30 years of experience defending Toronto-area clients against sexual assault charges—including voyeurism—Mass Tsang lawyers can strategize a solid defence to fight the charges. Read on to learn about voyeurism and how Mass Tsang defends clients against the charges.
Voyeurism as a Sexual Offence Under the Criminal Code
Canada’s Criminal Code delineates voyeurism under Section 162 (1) of its Sexual Offences, Public Morals and Disorderly Conduct Chapter: “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
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;
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
the observation or recording is done for a sexual purpose.”
Voyeurism is a hybrid offence that can be charged as either an indictable or summary conviction offence. When charged by the Crown as an indictable offence, the maximum sentence is five years imprisonment, while a summary conviction carries a maximum penalty of a $5,000 fine, two years imprisonment, or both. Oh, and a conviction under either will lead to mandatory inclusion on the OSAR and likely inclusion on the federal registry.
Defending Against Voyeurism Charges
Three elements that the Crown must prove “beyond a reasonable doubt” to secure a conviction of a suspect for voyeurism charges include:
That the victim had a “reasonable expectation of privacy.
That the observation or recording of nudity or sexual activity was surreptitious or secretive.
And that sexual interest motivated the observation or recording.”
The court cannot hand down a conviction if the defence can prove that any of these elements are missing. Thus, many voyeurism defence strategies focus on raising reasonable doubt about one or more of these crucial elements.
While the voyeurism statute was enacted in 2005, courts initially struggled with the “reasonable expectation of privacy.” Courts originally interpreted the term on a narrow, location-specific basis to cover places like bathrooms and changing rooms. However, the Supreme Court of Canada expanded the scope of the term in a precedent-setting 2019 decision in R. v. Jarvis 2019 SCC 10. In its decision, the court held that “the word ‘privacy’ includes the concept of freedom from unwanted scrutiny, intrusion, or attention.” This essentially expanded the reasonable expectation of privacy to cover a much wider range of locations and situations.
This high court ruling makes it more difficult for the defence to raise a reasonable doubt about what constitutes a reasonable expectation of privacy. Still, defence lawyers will usually challenge the concept in a voyeurism case unless the expectation is obvious.
Depending upon the circumstances, a sexual assault defence lawyer might also argue that the observed or recorded activity was not conducted surreptitiously or in secret. As warranted, the defence might argue that the activity was conducted by accident or otherwise lacked intent. Naturally, a hidden camera in a bathroom stall wasn’t put there by accident, but there are situations in which a person may have inadvertently observed or filmed somebody naked or engaged in sexual activity.
The third sexual interest motivation element also lends itself to defence challenges. The court cannot see into the mind of a suspect to determine if the alleged voyeurism was conducted for the purpose of sexual stimulation. So, the Crown must show that a reasonable person who objectively views the recording or hears the narration of the alleged voyeur’s observation would perceive it had been done for the purpose of sexual stimulation. As a judgment call, reasonable doubts can certainly be raised.
Skilled sexual assault defence lawyers will also examine police conduct and their evidence collection to assess whether the suspect’s Charter Rights may have been violated. If the police violate the Section 8 Charter Right covering search and seizure, the evidence may be excluded from trial, which is usually enough to lead to withdrawn charges or acquittal.
Turn to Mass Tsang for Your Voyeurism Defence
The criminal record, sex offender registration, and potential fines and/or imprisonment that come with a voyeurism conviction should be enough to encourage you to seek out the services of a skilled sexual assault defence lawyer if facing such charges. With decades of success helping Greater Toronto Area clients defend against voyeurism and other sexual assault charges, Mass Tsang can strategize an effective defence for you. Contact us today for a free consultation.