Voyeurism Lawyers in Canada

The Crown is the prosecutor. A person charged with an offence is presumed innocent until proven guilty, and that right is in section 11(d) of the Canadian Charter of Rights and Freedoms. So the Crown is the side that has to prove the charge.

Under section 162(1), a person commits the offence who, surreptitiously, observes a person, including by mechanical or electronic means, or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy. That is not enough alone. The section adds that one of three further conditions must also be present.

The first condition is that the person observed is in a place in which a person can reasonably be expected to be nude or nearly nude, to expose their sexual organs or to be engaged in explicit sexual activity. The second is that the person is nude, nearly nude, exposing their sexual organs or engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in that state or activity. The third is that the observation or recording is done for a sexual purpose.

Section 162(2) says that a visual recording includes a photographic, film or video recording made by any means. Section 162(4) is a related offence. It covers printing, copying, publishing, distributing, selling or otherwise making available a recording, knowing that it was obtained by an offence under subsection (1).

Section 162.1(1) covers a person who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person, knowing that the person depicted did not consent to that conduct, or being reckless as to whether they consented.

Section 162.1(2) defines an intimate image in two ways. The first is a visual recording of a person who is nude, nearly nude, exposing their sexual organs or engaged in explicit sexual activity, made in circumstances that gave rise to a reasonable expectation of privacy. The second is a visual representation made by electronic or mechanical means, including artificial intelligence software, that shows an identifiable person depicted in that way and is likely to be mistaken for a visual recording of that person.

Under section 162(5), an offence under section 162(1) or (4) is punishable by up to 10 years in prison on indictment, or it can be prosecuted as an offence punishable on summary conviction. Section 162.1(1) sets a maximum of 10 years on indictment, or 14 years if the accused knew or ought to have known that, at the time the image was made, aggravated sexual assault was being or had just been committed against the person depicted. It too can be prosecuted on summary conviction. Section 162.1(1.1), which covers a threat to publish an intimate image made with the intent to intimidate or to be taken seriously, carries up to 10 years on indictment or can be prosecuted on summary conviction.

These sections set maximums and no minimum terms. A maximum is the ceiling the law allows. It does not say what sentence a court would give in any case. Where an offence is prosecuted on summary conviction, section 787(1) sets the general penalty, unless another penalty is set: a fine of up to $5,000, imprisonment of up to two years less a day, or both.

The Criminal Code also gives courts other powers. Under section 164.1, where the illicit material is an intimate image in relation to which an offence was committed under section 162.1, the court must order the custodian of the computer system to delete it within 48 hours after the order is made. Under section 164.2, a court that convicts a person of an offence under section 162.1 may, on application of the Attorney General, order that a thing used in the offence be forfeited, if it is the property of the convicted person or another party to the offence. Under section 738(1)(e), a court may order restitution of reasonable expenses incurred to remove the intimate image from the Internet or other digital network.

Each element is a question in the case. For section 162, those include whether the person was in circumstances that give rise to a reasonable expectation of privacy, whether the observation or recording was surreptitious, and whether one of the three conditions is met. For section 162.1, they include whether the image fits the definition and whether the accused knew the person depicted did not consent, or was reckless as to whether they consented.

Section 162(6) and section 162.1(3) each set out a public good defence. No person shall be convicted if the acts alleged serve the public good and do not extend beyond what serves the public good. The motives of an accused are irrelevant to that question.

Charter rights apply from the start. On arrest or detention, section 10 gives everyone the right to be told the reasons promptly, the right to retain and instruct counsel without delay and the right to be told of that right. Section 8 protects against unreasonable search or seizure, which can matter where phones, cloud accounts or computers are searched. Under section 24(2), evidence obtained in a way that infringed Charter rights is excluded if admitting it would bring the administration of justice into disrepute. Whether any of this applies to a given case is a question for the court.

In Ontario, every charge under the Criminal Code starts in the Ontario Court of Justice, and about 95% of charges are completed there. The Superior Court of Justice can try any indictable offence but generally tries only the most serious ones.

A person who is arrested may be taken before a justice for a release decision. Under section 515, the justice shall make a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order under that section should be made.

After a conviction on indictment, an appeal goes to the court of appeal, as of right on a question of law alone and with leave on a question of fact or of mixed law and fact. An appeal against sentence also needs leave. After a conviction on summary conviction proceedings, an appeal in Ontario goes to the Superior Court of Justice sitting in the region, district or county where the case was decided.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. Duty counsel can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258. The Law Society of Ontario keeps a public Lawyer and Paralegal Directory, where a lawyer's licence can be looked up. Nothing on this page ranks or recommends any lawyer.