Voyeurism is a relatively new offence in Canadian law, added to the Criminal Code in 2015. It involves making secretive observations of subjects who are nude or performing sexual acts or in the process of doing so. Voyeurism is intended to protect people from both sexual exploitation and infringements on their personal privacy.

The offence of voyeurism was introduced in response to concerns over rapidly changing and improving technology. According to Parliament, the potential for harnessing technological advancements to invade the privacy of others necessitated legal restrictions.

The relevant provision for voyeurism in the Canadian Criminal Code is:

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.

To be found guilty of voyeurism, the Crown must prove beyond a reasonable doubt that you surreptitiously observed or recorded a person in a situation where they have a reasonable expectation of privacy. To do something surreptitiously means to be secretive in a manner intended to avoid notice.

The Crown must also prove that you committed the offence for the purpose of observing/recording a person who is nude/expected to be nude, or for a sexual purpose.

This offence covers activity from a Peeping Tom in the bushes all the way to a sophisticated webcam hack.

Some of the most common examples in Edmonton include:

  • Secretly taking pictures of or recording a roommate in their bedroom,
  • Using a “peephole” to watch someone changing or bathing in a private room, and
  • Installing a hidden camera in a public restroom to record its users.

With the increasing prevalence of smartphones with high-quality cameras and quick-access photography apps, we expect allegations of this offence to increase dramatically.

Investigation of Voyeurism Charges in Edmonton

Investigations of voyeurism allegations are typically initiated by the alleged victim. They contact the local Edmonton Police Service and report it. The police will request a written statement from the complainant and any witnesses, and will then launch an investigation.

The police will typically engage in a thorough investigation to find sufficient evidence to charge. This may include interviewing all witnesses, reviewing any video surveillance, seizing any evidence involved and photographing the scene.

After the police have gathered their evidence, they will arrest you if they believe you are the perpetrator. If you are not present at the scene, police will track you down or issue a warrant for your arrest.

After you have been charged, police will provide a package with all the evidence they collected, known as the “disclosure package,” to the Crown Prosecutor. You will have the right to access this disclosure package to see the evidence against you. Once you retain one of our lawyers, we will assist you in obtaining the disclosure package, and we will review it with you to assess the strengths and weaknesses of the Crown’s case, as well as any legal defences that may be available to you.

Penalties for Voyeurism Charges in Edmonton

Voyeurism is a hybrid offence, meaning that the Crown can elect to proceed by way of indictment or summary offence. This choice will impact the severity of punishments that you are given, with indictment being the more severe of the two.

Your chances of receiving a jail sentence for a voyeurism conviction are low.

Although voyeurism has no mandatory minimum penalties, the Criminal Code does list the maximum punishments as follows:

  • Indictment: Up to 5 years’ imprisonment,
  • Summary: Up to 2 years’ less a day imprisonment and a $5,000 fine.

When assessing the punishments for the offence, the Court will consider:

  • Attempts to dispose of or conceal evidence,
  • Attempts to stop the victim from reporting the offence,
  • Previous convictions of a similar nature,
  • The age of the victim,
  • The location of the offence, including the expectation of privacy,
  • The planning and deliberation that went into the execution of the offence,
  • The use of violence, or threats of violence,
  • Whether events were recorded,
  • Whether images/videos were distributed,
  • Whether the offence was committed while you were out on bail, and
  • Whether you were in a relationship of trust.

In addition to the immediate penalties resulting from a conviction for voyeurism, it can have wide-ranging negative consequences on your future. You may have trouble securing employment, especially in roles that require working with children, the elderly, or other vulnerable sectors of society. The lifelong criminal record that results from a conviction can hinder immigration and travel. Finally, because of the nature of voyeurism charges, your friends and family may perceive you as unworthy of their trust, and it can heavily impact your reputation.

Therefore, even if you intend on accepting responsibility for this type of offence, it is worthwhile to explore your options and consider all the possible penalties. Often, good representation can result in no criminal record. Furthermore, a community-based sentence may be obtained even where the Crown is seeking jail time.

Rest assured, our lawyers will work hard to defend you so that you are not saddled with the consequences that stem from a criminal conviction for voyeurism. In fact, we can canvass a range of sentencing options with the Prosecutors that will either leave you with no criminal record or impose minimal restrictions on your liberty after sentencing.

To learn more about potential non-criminal resolutions, please visit our Resolutions page, or read our FAQ on resolutions and other sentencing options.

Defending Voyeurism Charges in Edmonton

What are the best defences to voyeurism charges in Edmonton?

The best defences for a voyeurism charge depend on the circumstances of your case.

Generally, however, some good defences are:

  • Factual innocence: This is usually the strongest defence because the facts and the evidence do not support you being there, observing or recording, or other basic elements of the offence.
  • Violation of constitutional rights: The Canadian Charter of Rights and Freedoms sets out your rights before and after your arrest. If the police fail to abide by these rights, it could aid in your defence.
  • The subject was not nude/becoming nude/performing sexual acts: It does not constitute voyeurism to peek into your neighbour’s dining room, for example, where the subject is fully clothed and not performing sexual acts. If the subject in your case was not nude/performing sexual acts, that will challenge one of the main elements of the voyeurism offence.
  • No reasonable expectation of privacy: If the complainant does not have an expectation of privacy, you cannot be convicted of voyeurism. For example, if you recorded individuals at a public nude beach, they would have no reasonable expectation of privacy.
  • No sexual intent: If you recorded/observed for the purposes of security surveillance or captured the complainant accidentally, this challenges the mental element of the offence.

To be convicted, the Crown must prove that you surreptitiously observed or recorded a person in a situation where they have a reasonable expectation of privacy, and you did so for the purpose of observing a person who is nude/would reasonably be expected to be nude, or for a sexual purpose. While the Crown must prove beyond a reasonable doubt that you committed the offence, you may bear some responsibility in raising certain defences at trial.

The availability and strength of any defence depends entirely on the specific facts of your case. Our lawyers have significant experience assessing the availability and strengths of various potential defences in voyeurism cases, as well as presenting any and all available defences to the Court at trial. Even if you believe that you will be found guilty, it is important that you obtain a legal opinion about defences that may be available to you.

What’s Next?

Most of the information above relates to simple voyeurism cases, which can still be complex and fact-specific.

We have tried our best to provide a general outline of what you can expect if you find yourself in this situation, but this is just the tip of the iceberg.

To learn more about how we can help, please contact our team of Voyeurism Lawyers. We will conduct a thorough review of your situation and tailor a precise strategy that targets your successful defence.