Defences against voyeurism in Canada
Police can lay the charge of voyeurism if someone watches or records images of a person who believes they are in a private location. To be convicted of voyeurism, the Crown must prove:
- the observation or recording was done in surreptitiously;
- the offence happened in a place where the complaint had a reasonable expectation of privacy;
- the observation or recording was done for a sexual purpose.
If police feel these three conditions are met, they can lay voyeurism charges under s. 162 (1) of the Criminal Code. That section of the Code states it is also an offence to print or publish these recordings or images. Those found guilty face a maximum of five years in prison if the charge is treated as an indictable offence, with lesser sentences given to those found guilty of a summary conviction.
The best defence to a voyeurism charge always depends on the circumstances. Here are some common defences.
There was no right to privacy
A common defence to voyeurism is to argue that the complainant had no reasonable right to privacy in the circumstances. An example would be at a nude beach, as a 2014 Ontario Court of Justice case illustrates. It involved a 33-year-old woman who was at Hanlan’s Point, a clothing-optional beach in Toronto. According to the judgment, she was told by others that a man had been taking photos of her.
She approached him – he was also nude – and said it was “not okay” for him to take her photo without consent, court documents read, with the man agreeing to delete her photos. Not satisfied, she asked a police officer to arrest the man for voyeurism, even though there was no signage prohibiting photography.
The officer asked to see his camera and found 47 other photos taken that day, all of nude adults, the judgment reads, adding that the arresting officer explained to the man that voyeurism was the act of taking photos without the subject’s consent for the photographer’s sexual gratification.
At trial, the judge dismissed the charge, noting that the woman’s notion of privacy could not “reasonably include an expectation that she would not be photographed while sunbathing on a nude beach.”
The judgment continued that “privacy is not approached as a constitutional guarantee against which to measure the gravity of state misconduct but, rather, as a normative concept the margins of which are determined by a number of situational factors. For example, voyeurism … literally requires proof that the defendant’s conduct offended the reasonable privacy expectations of nude beachgoers.”
I was not responsible for the recording
To secure a conviction with a voyeurism charge, the Crown must prove beyond a reasonable doubt that you were the person who made the observation or recording. Unless the police can show you controlled or set up the camera in question, you could argue you are not responsible for the images it captured. Conversely, if the images are found on your personal smartphone or camera, this defence will not be available to you.
Police violated my Charter rights
There have been cases where police violated the rights enshrined in the Canadian Charter of Rights and Freedoms when gathering evidence. Perhaps they found incriminating videos and photos while conducting an illegal search of your phone or computer. In that case, s. 8 of the Charter can be cited by your lawyer, as it grants every Canadian the right “to be secure against unreasonable search or seizure.” If the court agrees, all evidence the police gathered in the illegal search must be excluded from consideration.
The complainant gave their consent
If you thought the person you were recording gave their consent to have their photo taken in a sexual manner this defence can be mounted, though it is very case specific.
The recording was not for a sexual purpose
While photographing or filming a person without their knowledge could have its own legal complications, it might not rise to the level of criminal voyeurism if there is no sexual intent. For example, a security camera could capture footage of people engaged in sexual relations, but it can be argued there was no sexual intent behind the camera’s placement.
Privacy is not lost when one is in public
A 2019 Supreme Court of Canada (SCC) case gives insight into what is a reasonable expectation of privacy when a person is in a public space. This case involved a high school teacher who used a camera mounted on a pen to secretly record footage of female students’ breasts.
The trial judge found that the Crown did not prove that the teacher made the surreptitious recordings for a sexual purpose, so he was acquitted. The Ontario Court of Appeal ruled the recordings were made for a sexual purpose but concluded the students did not have a reasonable expectation of privacy in common areas of the school.
The SCC unanimously ruled the students had a reasonable expectation of privacy in all areas of the school, finding the teacher guilty of voyeurism. In its reasoning, the court rejected the idea that simply because the young women were in quasi-public school hallways where they could be seen by others, including by the school’s security cameras, they could not reasonably expect privacy.
“The concept of ‘privacy’ defies easy definition … in a general sense and as ordinarily used, the word ‘privacy’ includes the concept of freedom from unwanted scrutiny, intrusion or attention,” the judgment reads. “The ‘reasonable expectation of privacy’ … is an expectation that one will not be observed or visually recorded.”
Guilty plea leads to probation
A former Tim Hortons manager was put on probation for 18 months after he admitted to filming a female teenage employee changing, according to a news report.
According to the story, the teenager was about to go into a washroom to change before her shift when the manager asked her to wait outside as he shut the door to supposedly fix a light. When she got into the bathroom and started to change, she noticed a cellphone on a shelf, filming her.
She took the phone to her supervisor who brought it to the store’s co-manager, the man’s wife. The story notes the supervisor explained what had happened and “didn't get the very best of receptions” from the co-manager.
The story adds that in a victim impact statement, the teenager said the incident traumatized her, noting: “Every time I have to use a public washroom, I first check it for any devices that are recording … I try not to do anything that may embarrass me just in case I'm being recorded.”
What defines creepy vs. criminal?
The internet has encouraged the proliferation of “creep accounts” where men post photos of women that focus on their breasts or buttocks without their knowledge.
The courts have determined that those who take "upskirt" videos or photos can be prosecuted under Canada's voyeurism laws, but police say that most of the material on creep accounts do not rise to that level despite being "extremely disturbing,” according to a news report.
It states that a man in Calgary – who amassed nearly 17,000 followers by posting hundreds of secretly recorded photographs – has been charged with voyeurism after he posted videos of women walking up stairs or getting on an escalator.
One of the women shown in these videos is quoted as saying it’s frightening “to think there's someone out there doing this kind of thing … it's kind of scary to think of what could happen.”
At the same time, she is reported to have stated that public photography that involves taking slice-of-life photos of strangers in public places should be maintained adding that deciding whether a photo is artistic or creepy depends entirely on “context” and the reason for taking it.
Why you need my help
Allegations of voyeurism can ruin your career and standing in the community. You can also be imprisoned if convicted. If you are being investigated or have been charged, contact me before giving a statement to police. One of the defences outlined above may work for you, or we can develop a strategy to suit your case.