Webcam, cell phone and social media; taking pictures or videos is now a daily activity, whether for friends, followers or partners. Although it is hard to imagine its limits in the digital age we live in, every citizen still is allowed to have a reasonable expectation of privacy. Especially when intimate images are at stake. This is why voyeurism and the publication of intimate images without consent are considered criminal offences under section 162 of the Criminal Code.
The act of voyeurism
A person could be convicted of voyeurism under section 162 (1) of the Criminal Code if he observes or produces a visual recording of a person in secret while that person is in circumstances for which there is a reasonable expectation of privacy.
A visual recording is a photo, film or video, made by any means, for example a camera, a cellphone or a computer.
According to the Criminal Code, there is a reasonable expectation of privacy if the person is in one of the following situations:
- 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;
- 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
- the observation or recording is done for a sexual purpose.
The infraction of printing, publication, etc., of voyeuristic recording
Under section 162 (4) of the Criminal Code, it is a criminal offense to print or publish voyeuristic material. A person will commit such offense under section 162 (4) if knowing that a recording was obtained by the commission of an offence under subsection (1) (see above the act of voyeurism)
- prints, copies, publishes, distributes, circulates, sells, advertises or makes available the recording, or
- has the recording in his or her possession for the purpose of printing, copying, publishing, distributing, circulating, selling or advertising it or making it available.
Publication of intimate images without consent
Under section 162.1 (1) of the Criminal Code, publication of intimate images could be a criminal offense. A person who : “… knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct “, could be convicted of this offense. This can be done by any means, for example by text message, email or social media such as Snap Chat or Instagram.
The sentence in the case of voyeurism
A person who has committed the offense of voyeurism, printing or publication of voyeuristic material, or publication of an intimate image, will be charged with either an indictable offense or a summary offense. It will be the prosecutor who will make this decision, based on the facts on the record to charge summary or indictable offense.
There is no minimum penalty for the offense of voyeurism. However, the maximum penalty is 5 years imprisonment for indictable offenses. On summary conviction, it is either 6 months imprisonment or a fine of up to $ 5,000.
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