Voyeurism Charge & Invasion of Privacy
Section 162 of the Criminal Code of Canada covers the offence of Voyeurism.
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.
At Daley, Byers we have extensive experience defending these charges with great success. In addition to outright findings of not guilty, in many cases we have convinced the Crown to withdraw the charge because there was no reasonable prospect of conviction. It is our job to find the weaknesses in the Crown’s case and demand proof of each and every element of their case beyond reasonable doubt. Search issues are often front and center in these cases and evidence is often excluded when the search is improper.
In addition, if the evidence is overwhelming, a lawyer can make submissions to persuade the Crown to elect summarily thus minimizing the potential penalty. If necessary, we 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. We have had numerous cases where we negotiated a resolution to the reduced charge of Mischief. This charge does not carry any sexual connotation and does not give rise to registration on the Ontario Sex Offender Registry also known as Christopher’s Law.
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.
What the Criminal Code of Canada Says: Section 162 - Voyeurism
The Offence of Voyeurism
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 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
(c) the observation or recording is done for a sexual purpose.
(2) In this section, visual recording includes a photographic, film or video recording made by any means.
Exemption – Voyeurism
(3) Paragraphs (1)(a) and (b) do not apply to a peace officer who, under the authority of a warrant issued under section 487.01, is carrying out any activity referred to in those paragraphs.
Printing, publication, etc., of voyeuristic recordings
(4) 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.
Punishment – Voyeurism
(5) 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.
(6) No person shall be convicted of an offence under this section if the acts that are alleged to constitute the offence serve the public good and do not extend beyond what serves the public good.
Question of law, motives
(7) For the purposes of subsection (6),
(a) it is a question of law whether an act serves the public good and whether there is evidence that the act alleged goes beyond what serves the public good, but it is a question of fact whether the act does or does not extend beyond what serves the public good; and
(b) the motives of an accused are irrelevant.
Factual Examples of Voyeurism Cases
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:
- Neighbour looking through the windows (peeping tom), or by means of a telescope.
- Use of a flip phone with a mirror to take pictures up the dresses of unsuspecting individuals.
- Video camera installation in washroom
- Pictures taken on private areas of a beach
- Video camera installation in shower area
- 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 to Voyeurism Charge
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.
- Conditional discharge
- 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.
Defences to the Charges 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.
- Identification – Can the Crown prove the identity of the person responsible?
- 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.
- There was no reasonable expectation of privacy.
- The act was not conducted surreptitiously.
- If the act was committed to serve the public good and does not extend beyond what serves the public good.
- The observation was not done for a sexual purpose
Successfully Negotiated Plea Resolutions
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.