Voyeurism (Offence)

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Voyeurism
s. 162 of the Crim. Code
Election / Plea
Crown Election	Hybrid summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court Sup. Court w/ Jury (*) Sup. Court w/ Judge-alone (*) * Must be indictable.
Summary Dispositions
Avail. Disp.	Discharge (730) Suspended Sentence (731(1)(a)) Fine (734) Fine + Probation (731(1)(b)) Jail (718.3, 787) Jail + Probation (731(1)(b)) Jail + Fine (734) Conditional Sentence (742.1)
Minimum	None
Maximum	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp.	same as summary
Minimum	None
Maximum	5 years incarceration
Reference
Offence Elements Sentence Digests

Overview

Offences relating to voyeurism are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
s. 162 [voyeurism]	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(under 14 years max)

Offences under s. 162 [voyeurism] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 162 [voyeurism]

When charged under s. 162 [voyeurism] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

• while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
• "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
• where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
• where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

• where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
• where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
• where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Fingerprints and Photos

A peace officer who charges a person under s. 162 [voyeurism] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Section s. 162 [voyeurism] offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

Offence Designations

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 162 [voyeurism]			(under 10 years max)		(max 5 year penalty)

Offences under s. 162 [voyeurism] are designated offences eligible for wiretap under s. 183.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

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.

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) [voyeurism – place where nudity expected] and (b) [voyeurism – victim is nude in private place] do not apply to a peace officer who, under the authority of a warrant issued under section 487.01 [general warrants], 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) [voyeurism – forms of offence], 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) [voyeurism – forms of offence] or (4) [voyeurism – offence for distribution of materials]

(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) [public good defence],

(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.

R.S., 1985, c. C-46, s. 162; R.S., 1985, c. 19 (3rd Supp.), s. 4; 2005, c. 32, s. 6.
[annotation(s) added]

– CCC

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Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
162(1)(a)	Voyeurism [recording in a place where persons might be nude or engaged in sexual activity]	"...did make a [make a visual recording or observe by mechanical or electronic means] of [name the alleged victim or a description of them] in circumstances that give rise to a reasonable expectation of privacy, when that 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"] contrary to section 162(1)(a) of the Criminal Code."
162(1)(b)	Voyeurism [recording of actual nudity or sexual activity]	"...did make a [make a visual recording or observe by mechanical or electronic means] of [name the alleged victim or a description of them] in circumstances that give rise to a reasonable expectation of privacy, when that person was ["engaged in sexual activity" or "exposing his or her genital organs or anal region or her breasts"], contrary to section 162(1)(b) of the Criminal Code"
162(1)(c)	Voyeurism [recording for a sexual purpose]	"...did ["make a visual recording" or "observe by mechanical or electronic means"] [name the alleged victim] in circumstances that give rise to a reasonable expectation of privacy, when that 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"], contrary to section 162(1)(a) of the Criminal Code."

Proof of the Offence

Proving voyeurism under s. 162(1)(a) [recording place where persons are expected to be nude or engaged in sexual activity] should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit observed and/or made a visual recording of another person; ☐ observation and/or recording was made "surreptitiously"; ☐ "where the observed or recorded person had a reasonable expectation of privacy," ☐ "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"

Proving voyeurism under s. 162(1)(b) [recording nudity or sexual activity] should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit observed and/or made a visual recording of another person; ☐ observation and/or recording was made "surreptitiously"; ☐ "where the observed or recorded person had a reasonable expectation of privacy," ☐ "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"

Proving voyeurism under s. 162(1)(c) [recording made for sexual purpose] should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit observed and/or made a visual recording of another person; ☐ observation and/or recording was made "surreptitiously"; ☐ "where the observed or recorded person had a reasonable expectation of privacy," ☐ "the observation or recording was for a sexual purpose."

Interpretation of the Offence

It can be inferred from the accused's possession of copies of a surreptitious recording that he had made the copies.

Distribution under s. 162(4) is considered the most serious of the voyeurism offences.

Photographs taken up the skirt of females who are in public places may amount to an offence of voyeurism.

However, photographs taken a nude beach does not amount to voyeurism.

Reasonable Expectation of Privacy

Children playing in a public park maintain some expectation of privacy when viewed through a video camera to focus on the genital and buttocks.

s. 162(1)(a)

"reasonably expected"

What is "reasonably expected" requires "a standard of expectation grounded upon a consideration of all the surrounding circumstances, while also involving an assessment of those circumstances based on common sense and our own everyday life experiences".

The expectation of privacy includes protection against a culprit making surrepticious screenshots during a video-chat.

Nude or Exposed

There does not need to be actual nudity or exposure.

"place"

Locations determined to be a "place" include:

• The men’s urinal at the accused’s workplace as people were using it;
• The bathroom of a matrimonial home
• An office washroom in which a camera was placed in a wastebasket located between the toilet and the sink that afforded an angled view of the toilet and which recorded a female employee using the washroom
• A clearly marked women’s shower area where the male accused entered as the female complainant was taking a shower;

A restaurant storage room is not a place in which a person can reasonably be expected to be nude.

s. 162(1)(c)

Sexual Purpose

See Sexual Interference (Offence)#Sexual Purpose

s. 162(4)

"Prints, copies, publishes, distributes, circulates, sells, advertises or makes available"

See Definition of Terms Relating to Transactions and Transferences

Participation of Third Parties

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. 162 [voyeurism]	(only if Crown proceeds by Indictment)

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 162 [voyeurism] ), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 162 [voyeurism]	summary election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 162 [voyeurism]	indictable election	5 years incarceration

Offences under s. [voyeurism] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s)	Crown Election	Discharge s. 730	Suspended Sentence s. 731(1)(a)	Stand-alone Fine s. 731(1)(b)	Custody s. 718.3, 787	Custody and Probation s. 731(1)(b)	Custody and Fine s. 734	Conditional Sentence (CSO) s. 742.1
s. 162 [voyeurism]	any

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where:

• one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
• each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))

[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]

Principles

The offence of voyeurism is considered a grave intrusion upon the victim's privacy.

The privacy of victims must be protected through ensuring that the sentence includes denunciation and deterrence.

Young Victim

Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years,... shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).

Factors

The most relevant offence-based factors in sentencing include:

• events were recorded
• Images were distributed or placed in a location where people could access
• Age of the victim
• Relationship of trust
• Planning and deliberation
• Violence or threats of violence
• Attempts to prevent or obstruct the complainant from reporting the offence
• Attempts to dispose or conceal evidence
• Previous related conviction
• Committed while released on bail
• Location of offence, including the expectation of privacy

Ranges

see also: Voyeurism (Sentencing Cases)

As of 2011, there had been no reported decisions where jail was given for a conviction under 162.

Society demands denunciation and deterrence in sentencing for voyeurism. However, where the offender has engaged in rehabilitation jail is not normally warranted.

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 162 [voyeurism]	If an offence under s. 162 [voyeurism] is prosecuted by indictment, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).
SOIRA Orders	s. 162 [voyeurism]	On conviction under s. 162, listed as a "secondary offence" under s. 490.011(1)(a), a SOIRA Order shall be ordered under s. 490.011(1)(b), on application of the prosecutor, "if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit" any SOIRA designated offence listed under s. 490.011(a), (c), (c.1), or (d): If the offender was subject to a SOIRA Order anytime prior to sentencing, the duration is life (s. 490.012(3)) Otherwise, the duration is 10 years as the offence was "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years". There is an option for early termination under s. 490.015 available after 5 years (if 10 year order) or 20 years (if life order) Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

General Sentencing Orders

Order	Conviction	Description
Non-communication order while offender in custody (s. 743.21)	any	The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738)	any	A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737)	any	A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

General Forfeiture Orders

Forfeiture	Conviction	Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))	any	Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3))	any	Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491)	any	Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1)	any	Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 162 [voyeurism] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

Victim Under 18 Years

Convictions under s. 162 [voyeurism] (where victim is under the age of 18) are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. An exception can be made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference between victim and offender is less than 5 years.

History

Voyeurism came into force in 2005.

See Also

• UK Sentencing Council on Voyeurism