Voyeurism Lawyers Victoria

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. Voyeurism charges are 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:

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 Victoria 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 will increase dramatically.

Penalties for Voyeurism Charges in Victoria

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.

Defending Voyeurism Charges in Victoria

What are the best defences to voyeurism charges in Victoria?

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 Victoria?

If you have been charged with voyeurism in Victoria, 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 Victoria?

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.

Further Reading

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.