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.
- 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.