Voyeurism Lawyers in Kelowna
What is Voyeurism?
Voyeurism is a relatively new offence in Canadian law, added to the Criminal Code in 2005. It involves making secretive observations of subjects who are nude or performing sexual acts or in the process of doing so. The offence of 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:
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 Kelowna 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 Kelowna
Investigations of voyeurism allegations are typically initiated by the alleged victim. They contact the local Kelowna 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.
Bail Process and Conditions for Voyeurism Charges in Kelowna
How do I get myself or a loved one out on bail for voyeurism charges in Kelowna?
If you have been charged with voyeurism, it is not uncommon for police to release you at the scene on a release order. Police will provide you with a Promise to Appear document outlining your charges, and any required appearances you must make. This document may also include conditions that you are required to follow while on release.
However, a formal bail hearing may be required to secure your release, particularly if you have a criminal record, or if you are facing other charges as well, such as breaking and entering or trespassing.
The bail hearing must be held within 24 hours, a period that starts from the moment of arrest or detention rather than the time when you are brought to the district office or Courthouse.
On a weekday, you will be transferred from the district office to the Kelowna Courthouse for your bail hearing.
The address of the Courthouse is as follows:
1355 Water Street
Kelowna BC V1Y 9R3
If you are arrested after approximately 3 p.m., you will be held at the detachment until the following morning, at which time you will be transported to the Courthouse for your bail hearing. Your hearing will be conducted in front of a Provincial Court Judge.
If you are arrested on Friday after approximately 3 p.m., or if you are arrested on a weekend, your bail hearing will be conducted at the detachment via telephone with a Justice of the Peace from the Justice Centre.
Loved ones are not able to contact you while you are detained. The police will not release any information to friends or family due to privacy laws. Your lawyer is the only person allowed to contact you. Once the police have verified your lawyer’s details, they will pass on information about your whereabouts, if requested.
Because of these difficulties, while you are held in custody, it is best to appoint a competent defence lawyer as soon as possible to manage the legal processes and communicate with your loved ones. After an arrest, the police must provide you with the opportunity to call a lawyer in private and, if that happens, stop questioning you.
Once you retain one of our experienced criminal defence lawyers, we will begin working to secure your release on bail.
We will immediately do the following:
- Call the district office where you are being held, or the Kelowna Courthouse if you have been transported, and speak to you.
- Contact the Prosecutor assigned to the bail hearing to start negotiating your release.
- Order and secure a copy of the police information package that details the allegations against you in advance of the bail hearing. This allows the lawyer to make meaningful representations to the Court about why you should be released on bail.
- Conduct either an in-person or teleconference bail hearing to secure your release.
When you attend your bail hearing, the Judge will consider:
- Is detention necessary to secure your attendance in court?
- Is detention necessary to protect the public from a substantial risk of re-offence?
- Is detention necessary in all the circumstances to maintain confidence in the administration of justice?
Although it is unlikely that you will be denied bail for this type of charge, tight restrictions may nevertheless be applied to your release.
Rest assured, we will work to not only secure your release but also to ensure the least restrictive set of bail conditions (including the minimum cash deposit).
In order for our lawyers to secure less stringent conditions, the Judge will need to be satisfied that you will attend court as required and that you pose no significant risk of harm to the public.
Our lawyers are often successful at persuading the Crown Prosecutor in charge of bail to let our clients out. If we can’t convince the Prosecutor, we can conduct a formal bail hearing and work to convince the Court. Even if you are ultimately detained, we can appeal that decision on very short notice through a bail review, which is conducted at the Supreme Court of British Columbia.
Where can I pay for bail for voyeurism charges in Kelowna?
If you or a loved one are charged with voyeurism in Kelowna and granted bail, you may be required to provide a cash deposit to secure release. You can pay bail at any court registry (courthouse) in British Columbia. If you live in Vancouver, you can pay bail there for someone detained in Kelowna.
The Kelowna court registry is open from 8:30 – 4:30, Monday to Friday.
The contact details of the registry office at the Kelowna Courthouse are as follows:
1355 Water Street
Kelowna BC V1Y 9R3
To pay your own bail, you can make a payment after your hearing, assuming you have sufficient funds with you to do so.
How do I change my release conditions for voyeurism charges in Kelowna?
Release on bail with voyeurism charges may include restrictions that impact your day-to-day life.
This could include conditions to refrain from:
- Interacting with any alleged victim,
- Attending the alleged victim’s home or place of work,
- Leaving your house (i.e. house arrest),
- Staying out beyond a certain time (i.e. curfew),
- Breaking any laws,
- Using drugs or alcohol,
- Possessing weapons,
- Visiting certain places, and/or
The Judge may also impose some additional conditions such as:
- Attending counselling,
- Residing where approved,
- Reporting to probation, and/or
- Maintaining or seeking employment.
A variety of factors will be considered when determining your precise restrictions, including:
- Your criminal history,
- Your physical and mental condition,
- The nature of the alleged voyeurism,
- The likelihood that you will flee,
- Your history of drug/alcohol usage,
- Whether you have stable employment,
- Whether you have stable living arrangements, and
- Whether you have ties to the community.
If you have already been released, at least for the short term, it is critical that you make arrangements to abide by your conditions until they can be changed. Breaching the terms of your release can result in further charges or a revocation of your bail, as well as a forfeiture of any cash paid to secure your release. It is important to take these conditions seriously.
Once the matter is in court, we can work with the Crown Prosecutor to alter your conditions. This includes either adding exceptions to some of the conditions or eliminating them altogether.
If your court date is far away and you cannot wait until then, we can arrange to have the matter dealt with sooner. Our first priority is always to stabilize your release conditions. That way, you will not feel pressured to plead guilty because of the restrictive terms of your release. Once the conditions are manageable and minimally intrusive to your daily routine, we can focus 100% of our attention on defending the case.
Penalties for Voyeurism Charges in Kelowna
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 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 Kelowna
What are the best defences to voyeurism charges in Kelowna?
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.
How can I help defend voyeurism charges in Kelowna?
If you have been charged with voyeurism in Kelowna, the following can help your lawyer build a strong defence:
- Provide your lawyer with a statement about what happened;
- Collect and maintain all documents and records about the event;
- Gather a list of witnesses that may support your version of events; and
- Log any relevant texts, emails, phone calls or photographic evidence.
As soon as you are released on bail, you should start to gather any information that may be of use to your lawyer. What information is relevant will depend on the facts in your case. If you are uncertain what information to collect, you should contact one of our lawyers immediately to create a plan of action.
If you are truly proactive about the matter, consider doing the following:
- Secure proof of employment;
- Secure reference letters;
- Enroll in counselling (anger management/substance abuse/parenting);
- Secure a record of prescriptions; and
- Secure a record of any mental health conditions you suffer from.
These steps can be very helpful for building an effective defence (or convincing the Prosecutor to drop the charges altogether).
What can a lawyer do to help me defend against voyeurism charges in Kelowna?
As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause, including:
- Assembling documents, photographs, texts, etc. that contradict the allegation and support your defence;
- Gathering evidence from witnesses that support your version of events;
- Identifying mistakes in the actions of the police, such as Charter breaches;
- Uncovering administrative/systemic errors, such as “Jordan delay,” non-disclosure, lost or destroyed evidence, etc.; and
- Finding weaknesses or “holes” in the Crown’s case that may make it difficult or impossible for them to establish the elements of the offence.
Below are a few notable cases dealing with various aspects of voyeurism charges:
In R v Desilva, 2011 ONCJ 133 the accused made videos of sexual activity between himself and his partner without consent, which he then posted on Facebook and sent digitally to friends. The accused was convicted of voyeurism and sentenced to 7-months incarceration and a 3-year probationary order.
In R v JHN, 2010 BCPC 155 the accused attended the residence of two teenage girls and secretly watched them undress on multiple occasions. The accused had no criminal record, and a psychiatric report prepared for the purpose of sentencing was positive. The accused was convicted of voyeurism, and received a suspended sentence with 18-months of probation.
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.
- What is voyeurism?
- What are the best defences to voyeurism?
- How can I get my voyeurism charges dropped?
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