Voyeurism as a Criminal Offence: A Consultation Paper

Part Two: Proposals For Voyeurism Offences

Defences

The discussion that follows considers the question of whether or not particular defences should be set out in a voyeurism scheme. These defences would apply in addition to any other relevant defences currently available either at common law or pursuant to the Criminal Code.

Rationale

Some common activities in society involve visual surveillance of others. Security cameras are currently used in public and private facilities, as well as by commercial establishments, such as retailers and restaurants. It can be argued that including a mental element of intentionally committing the offence "for a sexual purpose" would prevent individuals who use surveillance for a legitimate purpose, such as to protect property, from being convicted of a voyeurism offence. This is not to suggest, of course, that surveillance for security purposes is justified in any and all circumstances.

The question for discussion, however, is whether or not there should be a defence for the commission of voyeurism offences, such as a public good defence. Such a defence has been used in other contexts, and may or may not be appropriate for both branches of the voyeurism offence and/or for the distribution of voyeuristic materials. A public good defence is set out in subsections 163(3), (4) and (5) of the Criminal Code in relation to the obscenity provisions.[26]

In R. v. Sharpe, Chief Justice McLachlin suggested that a "purposive" interpretation to a public good defence would be appropriate and gave the following examples of situations in which possession of child pornography might serve the public good: possession by persons "in the justice system for the purposes associated with prosecution, by researchers studying the effects of exposure to child pornography, and by those in possession of works addressing the political or philosophical aspects of child pornography."[27] The Chief Justice acknowledged that the public good defence acted as a limitation on the law's breadth.[28]

Questions:

  • Should a defence or defences be created for a criminal voyeurism offence?
  • Should a defence or defences be created for the distribution offence?
  • Should the defence or defences be limited in any way, and if so, how?
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