Voyeurism as a Criminal Offence: A Consultation Paper (Abridged Version)
Voyeuristic Behaviours Targeted by the Proposed Offences
The proposed criminal voyeurism offence would include two alternative branches.
The first branch would criminalize the secret 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. If the viewing or recording is done for a sexual purpose, it does not matter whether or not the victim was naked or engaged in explicit sexual activity when the viewing or recording took place.
The second branch would recognize that it might 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. It would recognize that the viewing or recording might be done for other purposes, such as to sell voyeuristic images or to harass or embarrass the victim. If the reason for creating the offence is to protect people from sexual exploitation through a serious breach of privacy, it could be argued that it does not matter whether the accused committed the offence for a sexual purpose or for some other purpose.
In the second branch of the criminal voyeurism offence the mental element and the physical element of the offence would “match up”:
- the viewing or recording would have to be 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; and
- 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.
Building on the definition of a voyeurism offence, a distribution offence would prevent the intentional distribution to other people of one or more pictures or videos obtained through voyeurism. In order to be found guilty of the offence of distribution, the distributor would have to have known that the material was obtained through voyeurism.
The intent of the proposed criminal voyeurism offences is not to criminalize secret surveillance that is done for legitimate purposes, such as for security, though surveillance for security purposes is not justified in any and all circumstances. However, it does raise the question of whether there are circumstances in which what would otherwise be considered voyeurism should be allowed (as an exemption or a defence) because it serves a greater social purpose, and whether there should be other defences available for the offences of voyeurism or distribution of voyeuristic images.
- Date modified: