The lawyers at Stern Shapray have extensive experience representing clients charged with Voyeurism and reaching favourable outcomes for them. It is vital that one charged with this offence seeks out the legal advice of an experienced criminal lawyer in order to put forth the best possible defence(s) before the Court or pursue alternate ways to resolve the matter without going to trial.

When assessing whether to hire a lawyer when charged, it is important to first be aware of the legal consequences in the event one is found guilty of Voyeurism.

There is no statutory minimum sentence the accused will be subjected to if found guilty. If the charge is prosecuted summarily, the maximum jail sentence an accused can receive is 2 years less a day, with or without a fine of $5000. If the charge is prosecuted by indictment, the maximum jail sentence an accused can receive is 5 years. Less extreme forms of sentence are available under both summary and indictable proceedings, such as absolute discharge, suspended sentence, fine with or without probation, intermittent sentence, and conditional sentence.

That being said, the particular sentence imposed on an accused will largely depend on the circumstances of their case.

For an accused to be found guilty of Voyeurism, the Court must be satisfied beyond a reasonable doubt that each of the following requirements has been met (arranged by the specific subsection under which one gets charged):

1. Voyeurism under s. 161(1)(a):
   
   1. The accused observed or visually recorded the complainant;
   2. The observation or recording was “surreptitiously” made;
   3. During the observation or recording, the complainant was in circumstances that gave rise to a reasonable expectation of privacy; and
   4. The complainant was in a place in which one 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.
2. Voyeurism under s. 161(1)(b):
   
   1. The accused observed or visually recorded the complainant;
   2. The observation or recording was “surreptitiously” made;
   3. During the observation or recording, the complainant was in circumstances that gave rise to a reasonable expectation of privacy;
   4. The complainant was nude, was exposing his or her genital organs or anal region or her breasts, or was engaged in explicit sexual activity; and
   5. The accused did the observation or recording for the purpose of observing or recording the complainant in such a state or engaged in such an activity.
3. Voyeurism under s. 161(1)(c):
   
   1. The accused observed or visually recorded the complainant;
   2. The observation or recording was “surreptitiously” made;
   3. During the observation or recording, the complainant was in circumstances that gave rise to a reasonable expectation of privacy; and
   4. The accused did the observation or recording for a sexual purpose.
4. Voyeurism under s. 161(4):
   
   1. The accused printed, copied, published, distributed, circulated, sold, advertised, or made available a recording of the complainant, or the accused had the recording in his/her possession for these purposes; and
   2. The accused knew that the recording was obtained as a result of a voyeuristic offence under s. 162(1).

There are various ways in which charges of Voyeurism can be defended, ideally by raising a reasonable doubt toward one or more of the required elements of the charged subsection.

1. Section 162(1)(a):
   • identity of the accused,
   • the observation or recording was not “surreptitious”,
   • the complainant was not in circumstances suggesting a reasonable expectation of privacy; and
   • the complainant was not in a place where one would normally expect to expose intimate parts of their body or be engaged in sexual activity.
2. Section 162(1)(b):
   • identity of the accused,
   • the observation or recording was not “surreptitious”,
   • the complainant was not in circumstances suggesting a reasonable expectation of privacy;
   • the complainant was not nude, was not exposing intimate parts of their body or was not engaged in sexual activity, and
   • the observation or recording was not done for the purpose of observing or recording the complainant in that state.
3. Section 162(1)(c):
   • identity of the accused,
   • the observation or recording was not “surreptitious”,
   • the complainant was not in circumstances suggesting a reasonable expectation of privacy; and
   • the observation or recording was not done for a sexual purpose.
4. Section 162(4):
   • identity of the accused,
   • the accused did not print, publish, etc. the complainant’s recording, or did not possess the recording for such purposes; and
   • the accused was not aware that the recording was obtained as a result of voyeuristic conduct.

Additionally, the accused can bring Charter challenges before the Court as a defence, if their constitutional rights were violated during the investigation or their arrest.

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For reference, the offence of Voyeurism is outlined in the Criminal Code 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 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.

Definition of visual recording

(2) In this section, visual recording includes a photographic, film or video recording made by any means.

Exemption

(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

(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.

Defence

(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.

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