Voyeurism is when you observe or record a person without their knowledge or consent while the other person is in circumstances where they have a reasonable expectation of privacy. For a voyeurism charge to be laid, you also need to be observing the complainant in a place where he or she could be seen naked or engaging in sexual activity
An accused will be found guilty of voyeurism if the Prosecutor can prove beyond a reasonable doubt that:
- There was either an observation or a recording of the victim;
- The place where the person is being observed is a place where he or she can reasonably be expected to be either partially or completely undressed, or where they can be reasonably expected to be engaged in sexual activity; and,
- The person is nude, or is engaged in sexual activity, or the purpose of the recording is to capture the person in such a state; and,
- The observation or the recording was done for a sexual purpose.
For the purposes of this offence, a visual recording is a photographic, film, or video recording made by any means.
It is also important to note that when the Crown is proving that the observation or recording was made for a sexual purpose, they can rely purely on circumstantial evidence. For example, they can point to the location, time, and your own activities to suggest that the recording was being made for a sexual purpose. If these factors logically lead to the inference that you were recording for a sexual purpose, you can be convicted of this offence. However, when proving this element using only circumstantial evidence, the Crown will have to show that no rational conclusion could be drawn from the evidence other than that the recording or observation was done for sexual reasons.
If it can also be proven that you then took the recording and printed it, published it, or circulated it in any way, you will also be guilty of an additional and separate offence called printing and publishing voyeuristic recordings. It is important to note that in order to be convicted of printing and publishing voyeuristic recordings you need not even actually go through the process of distributing or printing the material. Rather, it is enough to merely have the recording in your possession for that purpose.
The Penalty for Voyeurism in Canada:
If you are convicted of voyeurism, you have been found guilty of a hybrid offence. This means that, the Crown has the choice to prosecute you by way of indictment, or by summary conviction. If the Crown chooses to prosecute you by way of indictment, you can be liable for a term of imprisonment of up to 5 years. If you are prosecuted summarily, the maximum time that you can spend in prison for this offence is 6 months in jail.
Some factors that the Crown will consider when trying to decide whether to proceed by indictment or summary conviction include:
- Whether you were observing and recording the complainant, or whether no recording was made and you were just observing the complainant;
- The nature of the activities observed or recorded; and,
- The age of the persons observed or recorded.
The presence of aggravating factors such as recording people that are underage, or abusing a position of trust in order to obtain the recording can incline the Crown Prosecutor to proceed by way of indictment and to pursue a more severe sentence.