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The Offence of Voyeurism

The courts are seeing an increase in voyeurism charges, thanks in part to the number of cell phones that now have cameras. Filming someone without their knowledge could lead to you being arrested for this serious offence. Fortunately, the Ontario Court of Appeal recently set out the parameters for this offence in R. v. Jarvis.

In that case, the accused was a high school teacher who used a camera pen to surreptitiously take videos of female students and one female teacher. The videos included the faces of the subjects but focused on their chests and cleavage areas. The accused was charged with voyeurism. The trial judge concluded that the students did have a reasonable expectation of privacy in the circumstances. However, he found that he was not satisfied beyond a reasonable doubt that the videos were done for a sexual purpose and the accused was acquitted. The Crown appealed.

The appeal was dismissed but the Court of Appeal upheld the acquittal for different reasons than the judge. The Court concluded that the offence has a number of components and requirements. It can be committed in two ways, one by observation and the other by visual recording. To come within the voyeurism offence, the observation or recording must be done surreptitiously. Also the person who is observed or recorded must be in circumstances that give rise to a reasonable expectation of privacy.

There are three alternative elements that further delimit or define the offence. The first focuses on the location of the victim: the offence occurs when the victim is in a place where a person can reasonably be expected to be nude, to expose their genitals, breasts or anal region, or be engaging in sexual activity. The second focuses on what the victim is doing: the offence occurs if the victim is nude or is engaging in sexual activity and the purpose of the perpetrator is to observe or record the nudity or the sexual activity. The third element is not circumscribed by the victim's location, his or her state of undress, or sexual activity. The offence is committed if the observation or recording is done for a sexual purpose. All these elements are governed by the overall requirement that the person observed or recorded must be in circumstances that give rise to a reasonable expectation of privacy.

In this case, the Court of Appeal concluded that the videos were made for a sexual purpose (nudity or suggestive clothing or poses were not required to make out the purpose), the offence did not occur in circumstances which gave rise to a reasonable expectation of privacy. The students did not have a reasonable expectation of privacy while engaging in normal school activities and interactions in the public area of the school.

Whether the Crown can prove the offence of voyeurism beyond a reasonable doubt will very much depend on the evidence of reasonable expectation of privacy, the sexual nature of the act and the surreptitiousness of the recording in each particular case.

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The Offence of Voyeurism | Bayne Sellar Ertel Carter