Specialized Prosecutions
Voyeurism Lawyer in Canada
A voyeurism lawyer defends charges under Criminal Code, s. 162, with the intimate image offence in s. 162.1. This page sets out what the offence covers, what the Crown must prove, the penalties on conviction and the defences that are commonly available, then lists criminal defence firms you can contact.
Criminal Code, s. 162, with the intimate image offence in s. 162.1·hybrid offence
What Voyeurism covers in Canadian criminal law
Section 162 of the Criminal Code prohibits surreptitiously observing or making a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, where one of three additional conditions is met: the person is in a place where they may reasonably be expected to be nude or engaged in sexual activity, the observation or recording is done for the purpose of observing nudity or sexual activity, or it is done for a sexual purpose.
In R. v. Jarvis the Supreme Court held that a reasonable expectation of privacy is not confined to private places. Students recorded by a teacher in the common areas of a school retained a reasonable expectation of privacy against being recorded in that way, and the Court set out a contextual list of factors for the analysis.
Section 162.1 creates the separate offence of publishing, distributing or making available an intimate image of a person knowing they did not consent, or being reckless as to consent. It is frequently charged after the breakdown of a relationship.
What the Crown must prove
The Crown carries the burden of proving every element beyond a reasonable doubt. A reasonable doubt on any one of them means an acquittal.
- The complainant was in circumstances giving rise to a reasonable expectation of privacy
- The accused surreptitiously observed or made a visual recording of them
- One of the three conditions in section 162(1)(a), (b) or (c) was met
- For a sexual purpose allegations, that the recording was made for a sexual purpose
- For section 162.1, distribution of an intimate image without consent, or recklessness as to consent
Penalties and consequences on conviction
- A maximum of five years imprisonment on indictment under both sections 162 and 162.1
- Registration under the Sex Offender Information Registration Act for section 162 offences
- Forfeiture of recordings and devices, and orders for removal of images under section 164.2
- Prohibition orders under section 161 where the complainant was under sixteen
- Severe employment and professional licensing consequences
Common defences
- No reasonable expectation of privacy in the circumstances, applying the R. v. Jarvis factors
- The observation or recording was not surreptitious
- Absence of a sexual purpose, where that is the branch relied on
- For section 162.1, an honest belief that the complainant consented to distribution
- Attribution: another person had access to the device or account
- Section 8 Charter challenges to the search of phones, cloud accounts and computers
Voyeurism lawyer: frequently asked questions
- Can recording in a public place be voyeurism?
- It can. R. v. Jarvis confirmed that a reasonable expectation of privacy is not limited to private places. The analysis is contextual and considers the location, the nature of the recording, the relationship between the parties and the purpose behind it.
- Is sharing an intimate image an offence even if I took it consensually?
- Yes. Section 162.1 targets distribution, not creation. Consent to the taking of an image is not consent to its publication or distribution, and distributing it knowing the person did not consent is a separate offence.
- Can the court order images taken down?
- Yes. Section 164.1 allows a judge to order the removal of an intimate image from a computer system, and section 164.2 permits forfeiture of the devices used. Those orders can be made in addition to any sentence.
Find a voyeurism lawyer
Criminal defence firms listed on Criminal Lawyers Canada that identify Voyeurism among their practice areas. Featured listings appear first.
Voyeurism lawyers by province