What is voyeurism?

What is voyeurism?

Voyeurism is to see or to record images or videos of someone when they believe they are in a private location, or in a place where they believe there's privacy. According to the Canadian Oxford Dictionary, a voyeur is "a person who derives sexual gratification from the covert observation of others as they undress or engage in sexual activities.” Voyeurism usually involves some form of nudity or sexual activity or organs, accompanied by sexual arousal on the part of the perpetrator.

According to a Department of Justice (DoJ) document, “most voyeurs engage in at least one other sexually deviant behaviour, usually exhibitionism or non-consensual sexual touching or rubbing … approximately 20% of voyeurs have committed sexual assault or rape … studies have shown that men commit most sex crimes and women and children are almost always the victims.”

The DOJ adds that voyeurs “justify their behavior with rationalizations or cognitive distortions, convincing themselves, for example, that their actions do not cause any harm or that the victim actually wanted to be observed.”

Voyeurism in the Criminal Code

Section 162 (1) of the Criminal Code makes it an offence to surreptitiously observe or record – including by mechanical or electronic means – “a person who is in circumstances that give rise to a reasonable expectation of privacy,” if:

• the person is in a place where they can reasonably be expected to be nude or to be engaged in explicit sexual activity;
• the person is nude, is exposing their genitals or is engaged in explicit sexual activity; and
• the above observations or recordings were done for a sexual purpose.

The Code states it is also an offence to print or publish these recordings or images.

The charge of voyeurism can be treated as either an indictable offence or a summary conviction. Those found guilty of an indictable offence face a maximum of five years in prison, with lesser sentences given to those found guilty of a summary conviction.

What is a ‘reasonable expectation of privacy’?

A 2019 Supreme Court of Canada (SCC) case examined the issues of voyeurism and a person’s reasonable expectation of privacy when in a public space.

It involved a high school teacher who secretly recorded female students’ breasts with a camera pen while they were in common areas of the school, such as hallways. The students were not aware that they were being filmed nor did they consent to the recordings. A school board policy in effect at the time prohibited the type of conduct engaged in by the accused.

At trial, the teacher admitted he had secretly made the recordings. But the trial judge ruled that the Crown did not prove beyond a reasonable doubt that the accused made the surreptitious recordings for a sexual purpose, leading to an acquittal.

The Ontario Court of Appeal, later ruled the recordings were made for a sexual purpose but that the students did not have a reasonable expectation of privacy in the halls and common areas of the school.

When the case reached the SCC, members unanimously concluded the students did have a reasonable expectation of privacy in all areas of the school and the teacher was sentenced for voyeurism.

In addressing the reasonable expectation of privacy, the SCC judgment reads: “Circumstances that give rise to a reasonable expectation of privacy … are circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred … ‘privacy,’ as ordinarily understood, is not an all-or-nothing concept, and being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording. Rather, whether observation or recording would generally be regarded as an invasion of privacy depends on a variety of factors, which may include a person’s location, the form of the alleged invasion of privacy, the nature of the observation or recording, the activity in which a person is engaged when observed or recorded and the part of a person’s body that is the focus of the recording.”

The judgment concludes with these closing thoughts on what is voyeurism. “The students had a reasonable expectation of privacy regarding how their bodies would be observed in the classrooms and hallways of their school … the technology used by the accused allowed him to take videos of the clothed breasts of his students — for extended periods of time — in angles and in proximity that went beyond the access that the students allowed in this setting, thus infringing their autonomy. The recordings were also objectively sexual in nature … in addition, and while not determinative, the recordings were made for a sexual purpose. The combination of these factors leads to the conclusion that by surreptitiously recording images of their breasts, the accused infringed the sexual integrity of the students.”

Images of buttocks not voyeurism

A personal trainer in B.C. who was alerted to a TikTok account that showed images of her and other young women walking in public has been told by police that the charge of voyeurism cannot be laid, according to a news report.

Photos and videos focus on her buttocks as she walks her dog and shops at stores, the story states, adding the woman believes it is “definitely an invasion of privacy. Not even just for the photos … but also in the sense that this person followed me home. They know where I live. They know where I go.”

The story quotes a member of the Vancouver Police Department who says the taking of such photos is a “gray area” in the law.

“Every incident is going to be taken on its own merit. For someone taking photographs in public, obviously it’s not illegal. But if they are taking it in a way where safety may be an issue, with children, or taken in a sexually explicit manner, we want the Vancouver Police to be aware,” the story states.

Schools swept for spy cameras

Schools in a New Brunswick district were electronically swept by police looking for recording devices after child pornography and voyeurism charges were laid against a volunteer basketball coach, according to a news report.

A school supervisor sent an email to parents, the story states, noting, "One of these charges is related to visual recordings of individuals with reasonable expectation of privacy; this statement may cause some to wonder where those visual recordings took place.”

Although there is no confirmation that visual recordings happened at one of the schools, the board completed a sweep of all washrooms and changing areas as a precaution, the story adds.

Jail follows voyeurism at school

A former special education teacher was sentenced to a year in jail after secretly videotaping women and girls as they undressed in a school change room, according to a news account. He was charged with 16 counts of voyeurism and two counts of child pornography. He was given a one-year jail term on the pornography charges and nine months, to be served concurrently, for the voyeurism charges.

Before sentencing, the victims were given a chance to tell the court what it was like to learn they'd been videotaped naked without their consent, the story states. One woman said she was “completely sexually violated” and had to change careers after the videos came to light, while another said she fell in a “deep depression.”

Filming daughter naked is voyeurism

An Ontario man was convicted of voyeurism and making child pornography after repeatedly and secretly videotaping his 10-year-old daughter in her bedroom, according to court documents. Court heard the father admitted he made the videos but argued he did so “because he had concerns about [her] behaviour and wanted to know about what she was doing in her bedroom.”

The judgment states the father said he was worried about “teenage sexual conduct” as a result of recent interactions with an older step-sister and her boyfriend. The 10-year-old was also unable to account for money she had in her possession, he said.

The judge rejected these arguments, noting: “I cannot see, as a matter of common sense, how placing a secret camera in a 10-year-old’s bedroom would serve to address [these concerns]. There were many other ways [the father] could have addressed his concerns with [her] behaviour. Start with talking to her about these problems for one.”

Court documents state the videos of the girl were discovered on a memory card after the man brought a camera to a pawn shop.

How can I help you?

Facing allegations of voyeurism can devastate your career and community standing and could even lead to imprisonment if you're convicted. As a sexual assault lawyer in Ottawa, I stand ready to build your defence. If under investigation or charged, contact me before speaking with the police. One of the outlined defences could apply to you, or we can tailor a strategy to your case. Reach out to me at 613.863.8595 for a free consultation.