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Voyeurism: When do Secret Recordings Cross the Line?

In this day and age cameras are everywhere. Pictures and videos can easily be taken on a smart phone at any given moment. Surveillance video, whether on a commercial premise or for home security, is everywhere. But when does filming become a crime?

The offence of Voyeurism was enacted by Parliament in 2005. In comparision to many offences in the Criminal Code, it is a relatively new offence. As a result, courts as still grappling with how to interpret it.

The first element of the offence is "surreptitiously observing" either directly (such as peeping through a window), by mechanical or electronic means, or by making a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy. In other words, filming someone where they have no reasonable expectation of privacy (such as in a store) will not meet the definition. Putting a hidden camera in a locker room or washroom, on the other hand, likely will meet that definition.

The second element is that the observation of filming has to have a sexual element. The three potential modes arise if:

(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;

(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or

(c) the observation or recording is done for a sexual purpose.

The consequences for conviction of Voyeurism can be severe, including potential jail sentences and ancillary orders such as being placed on the sex offender registry.

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