Voyeurism
Voyeurism is the offence, under section 162 of the Criminal Code, of surreptitiously observing or making a visual recording of a person in circumstances giving rise to a reasonable expectation of privacy, where the person is in a place where they can reasonably be expected to be nude or engaged in sexual activity, where the observation is for a sexual purpose, or where the observation otherwise meets specified criteria. The offence is hybrid: summary maximum is 2 years less a day; indictable maximum is 5 years.
Mass Tsang's sexual offence lawyers handle voyeurism files across the GTA with attention to both the criminal exposure and the collateral consequences.
Three pathways
Section 162(1) lists three pathways: (a) observing or recording a person where they can reasonably be expected to be nude, in their underwear, or engaged in sexual activity (typically washrooms, change rooms, bedrooms); (b) observing or recording a person nude, in their underwear, or engaged in sexual activity, where the observation or recording is done for the purpose of viewing the person's body or sexual activity; or (c) observing or recording a person for a sexual purpose. Each pathway requires the conduct to be surreptitious and to occur in circumstances giving rise to a reasonable expectation of privacy.
Reasonable expectation of privacy
The Supreme Court in R v Jarvis, 2019 clarified the reasonable-expectation-of-privacy analysis. Factors include the location of the observation (private spaces attract higher expectations; public spaces lower); the nature of the activity (intimate activity attracts higher protection); the relationship between observer and observed; the rules and policies of the location; and the reasonable expectations of the parties. Even in semi-public locations (school halls, workplaces), specific zones (washrooms, change rooms) attract heightened protection.
Surreptitious observation or recording
The observation must be surreptitious — secret, hidden, undisclosed. Open observation, even of intimate situations, generally does not support a voyeurism charge (other offences may apply). Use of hidden cameras, drones, two-way mirrors, smartphones held discreetly, and similar concealment techniques all meet the requirement. Recording is captured even where no one viewed the resulting recording.
Distribution and possession
Section 162(4) creates the related offences of printing, copying, publishing, distributing, circulating, selling, advertising, making available, or possessing a voyeuristic recording. These offences extend criminal liability beyond the original creation of the recording. Penalties are similar to those for the underlying voyeurism offence.
Consequences
Voyeurism is a designated sexual offence for SOIRA purposes. Conviction triggers registration (10, 20, or life depending on the offence and circumstances). Section 161 prohibition orders are available where the offence involved minors. Immigration consequences for non-citizens are serious. The reputational consequences of a voyeurism conviction can be severe and long-lasting.
Related glossary terms
