Backgrounder

Voyeurism Consultation

The Department of Justice has launched a consultation on the issue of voyeurism in order to receive public input on options for new Criminal Code offences for voyeurism and the distribution of voyeurism material. Voyeurism as a Criminal Offence: A Consultation Paper has been released, which contains a more detailed and technical examination of the creation of voyeurism legislation, while an accompanying abridged version outlines concerns surrounding this issue.

The Government of Canada encourages the public to participate in the criminal policy-making process. By consulting with Canadians, the Department of Justice will ensure that voyeurism legislation responds to the needs of the public.

Why is voyeurism legislation needed?

Secret viewing or recording another person for a sexual purpose or for the purpose of intentionally capturing nudity or explicit sexual activity is a serious breach of privacy. Given the secretive nature of voyeurism, incidents tend to be underreported, as those viewed or recorded often do not know they are being watched. There have also been some incidents for which there is currently no specific offence in the Criminal Code to address voyeuristic behaviour. Recent advances in technology, particularly the Internet, have made the anonymous recording and distribution of information easier. Given these trends, the development of voyeurism legislation has become a concern for the Government of Canada.

Federal-Provincial-Territorial Ministers Responsible for Justice at their February 2002 meeting agreed to develop a legislative framework that would establish voyeurism and the distribution of voyeuristic materials as offences under the Criminal Code. In addition, the Government of Canada consulted on options for voyeurism offences with experts at the 2001 Uniform Law Conference. The issue of voyeurism was also the subject of previous resolutions passed at the Uniform Law Conference in 1996 and 2000.

A policy initiative on voyeurism is consistent with Canada's international obligations under the International Covenant on Civil and Political Rights to protect people from arbitrary or unlawful interference with their privacy. The creation of voyeurism legislation also confirms the Government of Canada's commitment made in the January 2001 Speech from the Throne to provide modern tools to safeguard Canadians from emerging threats such as voyeurism.

Consultation Issues

Voyeurism as a Criminal Offence: A Consultation Paper examines several areas:

Defining voyeurism, either as a behaviour or as a sexual disorder, including demographics and trends for voyeurs and their acts.

Understanding voyeurism as an offence. Voyeurism can be seen as a breach of privacy. It can also be treated as a sexual offence, given the purpose of the act (for example, the sexual arousal of the voyeur), or the nature of the subject observed (for example, viewing or recording the victim's sexual organs or the victim engaged in explicit sexual activity). The Government's interest in protecting privacy and preventing sexual exploitation are closely related in voyeurism cases, when both the privacy and sexual or physical integrity of a person are violated.

Classifying voyeurism offences. Two alternative ways of committing a voyeurism offence are described. The first involves cases where a voyeur deliberately views or records - secretly and for a sexual purpose - another person in a place and in circumstances where a reasonable expectation of privacy exists. The second way addresses cases where the voyeur intentionally and secretly views and records another person whose sexual organs are exposed or is engaged in explicit sexual activity. This viewing or recording may be done for commercial purposes in addition to or instead of the viewer's sexual arousal. The victim is also in a place and in circumstances where there is a reasonable expectation of privacy.

Distributing voyeuristic material as an offence. The consultation paper suggests that those who intentionally publish, export, distribute, sell, transmit or make available voyeuristic material, or possess material for these purposes, would be committing a criminal offence. The material must include visual representations and the owner must know that the images were obtained through criminal voyeurism.

Law enforcement surveillance. The Department of Justice is interested in views on whether voyeurism offences would affect law enforcement authorities' surveillance of suspects. Law enforcement authorities have to obtain a warrant in order to conduct video surveillance when the subject has a reasonable expectation of privacy. This warrant is issued by a judge and allows for video surveillance only in respect of specified offences.

Defences. The consultation considers the issue of whether or not particular defences should be set out in the voyeurism scheme. One example provided is the possibility of establishing a "public good" defence.

Penalties. Voyeurism offences could be identified as dual procedure or hybrid offences. A hybrid offence allows the prosecutor to proceed either by summary conviction (with a usual maximum penalty of six months imprisonment and/or a fine of $2,000) or by indictment (the term of imprisonment is specified in the penalty provision; an unlimited fine is also available). A hybrid offence allows flexibility depending on the severity of the crime. Questions are also asked about the need for sentences that distinguish between acts of viewing and of recording, or whether distributing material should be subject to a higher penalty as it has the potential of further violating the victim's privacy beyond the initial voyeuristic act.

Electronic copies of the Voyeurism as a Criminal Offence: A Consultation Paper and the abridged version are available at http://www.canada.justice.gc.ca/en/cons/voy. Those with views or questions about the issues raised in the documents are invited to submit them to the Department of Justice at voyeurism-consultation-voyeurisme@justice.gc.ca by September 30, 2002.

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Department of Justice
July 2002