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Voyeurism

Voyeurism

Let’s Take a Peek at Voyeurism  section 162 Criminal Code

Cases of voyeurism seem to be constantly in the news.  On October 3, 2019 it was reported that Waterloo police had another Peeping Tom investigation in the Waterloo university district involving a cell phone that was seen being held. up to a kitchen window.  About a week earlier a similar complaint was made regarding a cellphone up to a bedroom window. At Daley, Byers we have defended most every imaginable scenario of voyeurism allegations; from cell phone pictures up dresses, to cameras in air vents, to a camera in toothpaste tube carefully placed in a public shower, to peep holes through walls, to cell phone pictures in change rooms and bathroom stalls, to a simple case of a Peeping Tom and the list goes on and on. 

There are a number of potential defences to the charge of voyeurism

Section 162 if the Criminal Code creates the offence of voyeurism and it reads as follows.

  1. 162 (1)  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

(a) the person is in a place in which a person can reasonable 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,

(b) 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

(c) the observation or recording is done for a sexual purpose

(5) (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 5 years; or

     (b) is guilty of an offence punishable on summary conviction.  

Obviously, an expectation of privacy is crucial to the charge of voyeurism.  The crown must prove that the complainant had an expectation of privacy in the circumstances of the case.

In addition, many times the case is contingent upon pictures being found on a cell phone.  The search of the phone must be legally authorized failing which the pictures are not likely to be admitted into evidence.

In cases, where pictures are found on a phone, the Crown must prove that the pictures were taken without consent.  Often the search may reveal pictures, but the individuals cannot be located (up dress pictures, pictures on a beach, pictures in a shopping mall).  Although there may be a collection of pictures, the Crown must prove the pictures were taken sureptiously.

In some cases of voyeurism, it is possible to resolve by way of a plea to another charge.  We recently resolved a charge of voyeurism to a charge of mischief contrary to s. 430 (c) – obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property.  It is also important in voyeurism cases to be cognizant of the requirement for registration under the Ontario Sex Offender Registry often referred to as Christopher’s Law in certain instances and how this can be avoided.

If you are charge with voyeurism give us a call for a free consultation and hopefully we will be able to assist you through the process for a  favourable result.

Voyeurism – Caught Candid

Voyeurism – Caught Candid

Voyeurism—Caught Candid

If you are charged with voyeurism or a related sexual type of offence, be sure to read this article carefully as it is in your best interests to do so. Voyeurism only recently became a criminal offence when it was added in 2005 as a sexual offence under s. 162 of the Criminal Code. You may have several questions so let’s get to it

What does the  Criminal Code say about voyeurism?

  1. 162 (1) Every one commits an offence who, surreptitiously (secretly), 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
  1. 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;

(b) 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

An example would be secretly recording any consentual sexual act with a girlfriend/boyfriend or spouse.  Make sure you get permission to record.

(c) the observation or recording is done for a sexual purpose.

An example of these types of locations where privacy can be reasonably expected includes a hotel room, a home, apartment or any other such private residence, a changeroom, a bathroom.  

  1. 162(4) of the Code states that “every one commits an offence who, knowing that a recording was obtained by the commission of an offence under subsection (1), prints, copies, publishes, distributes, circulates, sells, advertises or makes available the recording, or has the recording in his or her possession for the purpose of printing, copying, publishing, distributing, circulating, selling or advertising it or making it available.”

Also, it does not matter if no one else saw the video or if the sex was consentual at the time if the recording was not consentual, such as secretly recording your girlfriend (R v SM 210 ONCJ 347).  You may be caught under the voyeurism laws if you are involved in degrading your ex-girlfriend or boyfriend by personally or allowing others to share on social media (or anywhere else) videos of you and your ex engaged in any sexual activity (R v Desilva 2011 ONCJ 133). This act is otherwise known as revenge porn and unfortunately the trend is continuing to grow despite best efforts of lawmakers to curb cyberbullying and online sexual offences.  

How long will I be in jail if I lose at trial?

In brief, this is a very difficult question to answer. Every case is different when it comes to voyeurism laws. If you have a previous criminal record and or the bad the judge views your case as being very bad, you may be facing up to five years in a federal penitentiary.  

  1. 162 (5) of the Code states that “every one who commits an offence under subsection (1) or (4)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction

It is very important that you seek professional legal representation as soon as possible. The stakes are very high, especially if you go to jail. There is a certain hierarchy among prison inmates and those with sexual convictions are treated more harshly in an already harsh environment.  This charge of voyeurism has numerous possible defences. Anyone charged should seek the professional assistance of an experienced counsel. Speak with us and we will give you free legal advice on this situation. 

 

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