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Section 162 of the Criminal Code of Canada covers the offence of Voyeurism.

The offence of Voyeurism causes incredible worry and embarrassment. In addition to the penalties prescribed by the criminal code the charge of voyeurism can cause extreme embarrassment in the community and can impact employment, employment prospects, travel and immigration.

It is crucial that every individual charged with voyeurism consult with and retain a lawyer experienced in defending these charges as soon as possible. The right to remain silent is extremely important in these cases as it is often difficult to prove various elements of the case.

In addition, if the evidence is overwhelming, a lawyer can make submissions to persuade the Crown to elect summarily thus limiting exposure. An experienced lawyer will look for all defences to the substantive charge and weaknesses in the Crown’s case. If necessary, a lawyer will prepare and present sentencing submissions to ensure that the lowest sentence is imposed. In some cases, plea bargaining can result in an lesser charge.

At Daley Byers Criminal Lawyers, we offer emergency service on a 24/7 basis. Our toll free number will connect you with one of our lawyers experienced in this area of law.

The Offence of Voyeurism

The offence of voyeurism is committed by surreptitiously observing a person in circumstances that give rise to a reasonable expectation of privacy if:

  • that person is in certain places defined in 162 (1) (a):  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, or
  • s. 162 (1) (b)  the person is nude, or 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 a sexual purpose, or
  • s. 162 (1)(c) the observation or recording is done for a sexual purpose

The offence is committed whether the observation is direct or done by mechanical or electronic means or through making a visual recording.

Factual examples:

We have defended a number of cases relating to the charge of voyeurism under s. 162 of the Criminal Code.  Following are a few examples of the factual scenarios that we have encountered:

  1. Neighbour looking through the windows  (peeping tom), or by means of a telescope.
  2. Use of a flip phone with a mirror to take pictures up the dresses of unsuspecting individuals.
  3. Video camera installation in washroom
  4. Pictures taken on private areas of a beach
  5. Video camera installation in shower area
  6. Video recording of consensual sexual activity without providing knowledge of the existence of the recording device

It is also an offence to publish, print, or distribute in any way a recording obtained in violation of s. 162(1).

Penalties

If the Crown attorney chooses to proceed by indictment the maximum sentence is five years in prison.

If the Crown attorney chooses to proceed by way of summary conviction, the maximum sentence is 6 months.

  1. Jail
  2. Fine
  3. Probation
  4. Conditional discharge
  5. Absolute discharge

In most cases the Court is concerned as to whether the accused constitutes a danger to the public. To alleviate this concern it is often necessary for the accused to obtain a psychologist report assessing the level of risk. At Daley, Byers we have expert psychologists in this field that we refer our clients to.

Reduction of Charge  (Alternative Charge)

We have successfully negotiated plea resolutions from the charge of voyeurism to a charge of mischief under the Criminal Code. A mischief charge does not carry the stigma that follows a conviction for voyeurism.

Defences to the charge of Voyeurism

There are many possible defences that arise out of various factual scenerios. Depending upon the allegations the following is a non- exhaustive list of possible defences.

  1.  Identification – Can the Crown prove the identity of the person responsible?
  2. Illegal Searches – cell phones, computers, … etc. are often searched by the police in the course of their investigation. These searches can be challenged and evidence excluded.
  3. There was no reasonable expectation of privacy.
  4. The act was not conducted surreptitiously.
  5. If the act was committed to serve the public good and does not extend beyond what serves the public good.
  6. The observation was not done for a sexual purpose