Voyeurism is defined in s. 162(1) of the Criminal Code:
162. (1) Every one commits an offence who, surreptitiously, observes — 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, 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.
Aside from identity, date, and jurisdiction, the elements required for the Crown to prove voyeurism are therefore as follows:
1. The accused observed or made a visual recording of another person;
2. The observation or recording was made in a circumstance where there is a reasonable expectation of privacy;
3. The other person is in a situation described in either s. 162(1)(a) or (b) or the observation or recording was done for a sexual purpose; and
4. The observation or recording was done intentionally, including recklessly or with wilful blindness.
Note that the requirements in s. 162(1)(a) doesn’t require the recording to have been made for a sexual purpose; it’s enough that the person observed or recorded could reasonably be expected to be nude, exposed, or engaged in sexual activity.
Since s. 162(1)(b) requires actual exposure and a sexual purpose, while s. 162(1)(a) does not require a sexual purpose, s. 162(1)(b) appears to be redundant.
A reasonable expectation of privacy will exist for the purpose of s. 162(1) if a person who is recorded had a reasonable expectation that they would not be recorded, didn’t consent to being recorded, and the recording was done for a sexual purpose (see R. v. Jarvis, 2019 SCC
Therefore, curiously enough, according to Jarvis a reasonable expectation of privacy could exist for the purpose of s. 162(1) if the complainant is in a public place simply because they expected not to be recorded for a sexual purpose without their consent.
s. 162(4) also prohibits the copying and distribution of any materials obtained through voyeurism. It is a much more serious offence.
You can find some of the firm’s case results for voyeurism HERE.