A charge of Voyeurism is a serious criminal allegation that can permanently alter a person’s life. The offence was added to the Criminal Code in 2005 to address the growing threat that hidden cameras, smartphones, and other recording technology pose to personal privacy and sexual integrity. Since then, the number of cases prosecuted in Canada has increased dramatically, and the courts have interpreted the offence broadly. A conviction can result in up to five years’ imprisonment, mandatory registration on the National Sex Offender Registry, and a permanent criminal record. For anyone in Newmarket or York Region facing this charge, the consequences extend well beyond the courtroom.

Section 162(1) of the Criminal Code makes it an offence to surreptitiously observe, including by mechanical or electronic means, or make a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, in three situations: where the person is in a place where they can reasonably be expected to be nude or engaged in sexual activity, where the person is nude or engaged in sexual activity, or where the observation or recording is done for a sexual purpose (Criminal Code, RSC 1985, c C-46, s 162(1)). The offence is designed to protect two overlapping interests: the privacy of individuals and their sexual integrity (R v Jarvis, 2019 SCC 10, [2019] 1 SCR 488).

The Legal Elements of the Offence

To secure a conviction for Voyeurism, the Crown must prove several elements beyond a reasonable doubt. First, the accused must have observed or made a visual recording of another person. Second, the observation or recording must have been done surreptitiously. Third, the person observed or recorded must have been in circumstances that give rise to a reasonable expectation of privacy. Fourth, one of the three statutory conditions must be satisfied: the person was in a place where nudity or sexual activity could reasonably be expected, the person was in fact nude or engaged in sexual activity, or the observation or recording was done for a sexual purpose (Criminal Code, RSC 1985, c C-46, s 162(1)(a)–(c)).

The reasonable expectation of privacy is assessed contextually. In R v Jarvis, the Supreme Court of Canada held that privacy is not an all-or-nothing concept and that being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording. The Court identified a range of factors relevant to the analysis, including the location where the observation occurred, the nature of the conduct being observed, whether the person was aware of or consented to the observation, the relationship between the parties, the means by which the observation or recording was made, and any rules or regulations governing the location (R v Jarvis, 2019 SCC 10).

In R v Downes, the Supreme Court further clarified that section 162(1)(a) designates certain places, such as bedrooms, bathrooms, and dressing rooms, as locations where people should be free from intrusions on their privacy and sexual integrity at all times, not only at the specific moment when nudity or sexual activity is occurring. It is sufficient that a person can reasonably be expected to be nude in that place, regardless of whether nudity was occurring at the time of the observation or recording (R v Downes, 2023 SCC 6).

Penalties and Ancillary Orders

The offence of voyeurism is hybrid. On indictment, the maximum sentence is five years’ imprisonment. On summary conviction, the maximum is two years less a day (Criminal Code, RSC 1985, c C-46, s 162(5)). There is no mandatory minimum sentence, but courts have increasingly imposed custodial sentences, particularly in cases involving hidden cameras, recordings of minors, or a breach of trust.

Beyond the custodial sentence, a conviction triggers a range of ancillary consequences:

• Mandatory registration on the National Sex Offender Registry under the Sex Offender Information Registration Act, with reporting obligations that can last up to twenty years or for life depending on the circumstances
• A permanent criminal record that appears on background checks and can affect employment, professional licensing, and volunteer positions, particularly those involving vulnerable populations
• A potential forfeiture order under section 164.2 of the Criminal Code for any device or recording used in the commission of the offence
• A discretionary prohibition order under section 161 where the complainant is under the age of sixteen, restricting the offender from attending places where children are present and from seeking positions of trust or authority over young persons
• Immigration consequences for non-citizens, as the five-year maximum sentence is sufficient to trigger inadmissibility on grounds of criminality under the Immigration and Refugee Protection Act

Section 162(4) of the Criminal Code creates a separate offence for anyone who prints, copies, publishes, distributes, or makes available a recording that they know was obtained through voyeurism, or who possesses such a recording for the purpose of distributing it. This offence carries the same penalties as the voyeurism offence itself, and it means that a person who did not make the recording can still be charged and convicted.

Defences and Strategic Considerations

A charge of Voyeurism can be defended on multiple fronts, and the specific facts of the case determine which lines of defence are strongest. The Crown must prove each element of the offence beyond a reasonable doubt, and the contextual nature of the privacy analysis often creates genuine room for disagreement.

One of the most significant defences relates to the reasonable expectation of privacy. If the complainant was in a location or circumstances where no reasonable expectation of privacy existed, the offence is not made out. While the Supreme Court has made clear that public and semi-public spaces do not automatically negate privacy, the analysis remains contextual, and there are situations where the evidence will not support a finding that a reasonable expectation of privacy arose.

The requirement that the observation or recording be “surreptitious” is another element that can be challenged. If the complainant knew about and consented to the observation or recording, the conduct does not meet the statutory definition. Consent can also be relevant where the complainant initially agreed to be recorded but later withdrew that consent, raising questions about the scope and timing of the alleged offence.

A defence lawyer reviewing the disclosure in a voyeurism case will examine questions such as:

• Whether the observation or recording was in fact surreptitious, or whether the complainant was aware of it
• Whether the circumstances gave rise to a reasonable expectation of privacy, assessed against the contextual factors identified in R v Jarvis
• Whether the Crown can prove that the observation or recording was done for a sexual purpose, particularly where the accused offers an alternative explanation for the conduct
• Whether the digital evidence, including recordings, metadata, and device contents, was obtained in compliance with the accused’s Charter rights, especially the right against unreasonable search and seizure under section 8

Section 162(6) of the Criminal Code provides a public good defence: no person shall be convicted if the acts alleged to constitute the offence serve the public good and do not extend beyond what serves the public good. This defence is narrow and rarely invoked, but it exists as a statutory safeguard for conduct such as legitimate journalism or law enforcement activity.

Frequently Asked Questions

A charge of Voyeurism carries consequences that reach into every area of a person’s life: liberty, employment, reputation, relationships, and the ability to travel or pursue immigration applications. The sex offender registration, the criminal record, and the social stigma attached to a conviction make it essential to mount the strongest possible defence. Yet the contextual nature of the privacy analysis, the requirement that the Crown prove a sexual purpose, and the potential for Charter challenges to the collection of digital evidence all create genuine opportunities to defend these cases effectively.

Anyone facing this charge in Newmarket or elsewhere in York Region should speak with a criminal defence lawyer immediately. Early legal advice is critical, both to protect rights during the investigation and to begin building a defence before evidence is lost or deadlines pass. The outcome depends on the specific facts, and the sooner those facts are reviewed, the better positioned the defence will be.