Voyeurism as a Criminal Offence: A Consultation Paper

Part Two: Proposals For Voyeurism Offences

Criminal Voyeurism

The Elements

There are two ways in which a voyeurism scheme can deal with violations of physical or sexual integrity. One is to provide a specific intent offence of committing voyeurism for a sexual purpose. The other option is to criminalize viewing or recording that is done specifically for the purpose of violating the physical or sexual integrity of the victim and is achieved by viewing or recording specified sexual organs, body parts or explicit sexual activities.

These two alternative ways of committing a voyeurism offence are set out in the description of the elements of the offence given below. Please note that this description is concerned with the relevant concepts; it is not proposed as legislative drafting.

Elements - first branch of the offence:

  • for a sexual purpose
  • surreptitiously and intentionally
  • views or records, by any means
  • a person in a place and in circumstances that give rise to a reasonable expectation of privacy.

OR

Elements - second branch of the offence:

  • surreptitiously and intentionally
  • views or records, by any means
  • a person while that person is in a state of nudity, in a state of undress exposing the breast, sexual organs or anal region, or engaged in explicit sexual activity
  • in a place and in circumstances that give rise to a reasonable expectation of privacy
  • for the purpose of viewing or recording a person while that person is in a state of nudity, in a state of undress exposing the breast, sexual organs or anal region, or engaged in explicit sexual activity.

Rationale

The policy intent is to create two alternative ways in which a criminal voyeurism offence could be committed. The first branch of the offence would involve surreptitious viewing or recording of another person for a sexual purpose while that person is in a place and in circumstances where there is a reasonable expectation of privacy. By this formulation of the offence, as long as the viewing or recording is done for a sexual purpose, it does not matter whether or not the victim was naked, engaged in explicit sexual activity, etc. when the viewing or recording took place. The second branch of the offence would recognize that it may be difficult to establish that the viewing or recording was done "for a sexual purpose" in circumstances where the victim and the offender do not have physical contact. This formulation recognizes that the viewing or recording may be done for other purposes, such as to generate visual representations for commercial sale, to harass or intimidate the victim, or to amuse others at the victim's expense. If the policy rationale for the creation of an offence is to protect persons from sexual exploitation, it can be argued that this rationale is relevant whether the accused committed the offence for a sexual purpose or for some other purpose. As with the first branch of the voyeurism offence, the Crown would have to prove beyond a reasonable doubt that the viewing or recording was done surreptitiously, in circumstances where the victim had a reasonable expectation of privacy. In the second branch of the criminal voyeurism offence the mental element and the physical element of the offence would "match up" in the sense that the viewing or recording would have to have been done for the purpose of viewing the victim in a state of nudity, or undress where the breast, sexual organs or anal region are exposed, or while the victim is engaged in explicit sexual activity. Furthermore, the actual observations or recordings of the victim must also have captured the victim in one of the physical states mentioned in the offence or engaged in explicit sexual activity. Both branches of the criminal voyeurism offence, therefore, would create specific intent offences.

Should both branches of a criminal voyeurism offence be proven beyond a reasonable doubt, the Crown would likely ask for a conviction to be registered in respect of only one branch because of the common law protections against being convicted twice for the same criminal activity.[24]

It should be pointed out that the voyeurism offence is not intended to capture the activities of persons who simply consume voyeuristic images. A person who produces voyeuristic images for personal use could be charged under the voyeurism scheme. Similarly, a person who receives voyeuristic images and then sends those images to others would be subject to prosecution, along with the original producer and distributor of the material. However, a person who is sent voyeuristic images and views or records them for his or her own use would not meet the actus reus of "views or records." In other words, the proposed scheme would not criminalize possession or the viewing or recording of previously recorded material for the purpose of personal use.

The reference to "views or records, by any means" is intended to capture voyeuristic visual representations that are conveyed through a variety of modern technologies, including live transmission over the Internet. It would be a question of fact whether the technology used to convey the visual representation involved both viewing and recording, or viewing alone, or recording alone. An additional provision would clarify that audio records are included only to the extent that they are integrated with visual records. The wilful interception of private communications is currently governed by section 184 of the Criminal Code. The provision would clarify the relationship between the proposed voyeurism offence and the current Code offences that deal with invasion of privacy.

Question:

How should the criminal voyeurism offence be defined?

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