Voyeurism: Does the Victim Need to be Naked?
No.
The offence of voyeurism
(section 162 of the Criminal Code)
was enacted in 2005 to address public concerns with the rapid advent of
technology that could be used to spy on people surreptitiously for sexual
purposes.
“For a sexual purpose”
Subsection (b) of the
offence specifically makes it an offence to surreptitiously observe or surreptitiously
visually record a person who is nude. Subsection (c) requires only that the surreptitious
observation or surreptitious recording be “done for a sexual purpose”.
Because observing or
visually recording for a sexual purpose
is a separate offence, it is clear that the voyeurism offence can be committed
where the victims are not naked, but where the focus of the observation or
videos is on sexual organs or where there are other indicia that the intent of
the accused is for a sexual purpose.
R. v. Jarvis, 2017 ONCA 778, at para. 44; for
more on what constitutes “for a sexual purpose” see R. v. Sharpe, 2001 SCC 2,
[2001] 1 S.C.R. 45, at para. 50.
In R. v. Rudiger, 2010 BCPC 182 (CanLII), the
circumstantial evidence pointing to a sexual purpose was compelling. The accused used a video camera to view and record
very young children playing in a park, focusing in on their genital and
buttocks regions. There was also
evidence indicating that the accused was masturbating while doing so. The finding
that the recording/observation had been done “for a sexual purpose” was not
challenged on appeal.
In R. v. Jarvis, 2017 ONCA 778, a high school teacher used a camera
pen to surreptitiously take videos of female students as he conversed with them
at school. The Court of Appeal for
Ontario (at para. 46) held that the recordings, which focused on the breasts of
the teenaged female students, were “for a sexual purpose”.
But see R. v. Taylor, 2015 ONCJ 449, where the accused took pictures of
women’s buttocks while they were sunbathing in thong bathing suits on a beach.
When considering the sexual purpose component of the offence of voyeurism, the
trial judge concluded that he could not discount the possibility that the
pictures were taken for artistic reasons.
Stuart
O’Connell, O’Connell Law Group, www.leadersinlaw.ca
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