Voyeurism (CC s. 162 (1)) accusations made by an ex-partner, spouse, child, stepchild, or visitors to your home.

Hidden cameras, pictures or videos taken while someone is sleeping/unaware, and other surprise discoveries often result in voyeurism charges if reported to the police.

Voyeurism charges being laid against members of the same household are growing more common in Ontario. This usually starts when a hidden camera is discovered in the bathroom, bedroom, or other place people normally undress. Other times the spouse or a child in the home find pictures or videos on a phone or computer they did not know were taken. Perhaps they were recorded while sleeping, intoxicated, from behind, or in some other way they were unaware of.

The initial discovery of the electronic devices, pictures, or videos is usually by accident. An incriminating file is sent by mistake, or a suspicious spouse goes through the accused's phone only to find pictures or videos taken secretly of them, their children, friends of their children, or other people in the home.

In domestic voyeurism cases, the discovery is usually a shocking surprise that may not be fully investigated prior to the police being called.

The alleged victim may report finding a hidden camera, photos, or videos to the police without discussing it with the accused first to canvas potential explanations other than voyeurism for a sexual purpose.

The family member or friend who finds the media is usually shocked and may contact the police immediately as an initial reaction. Sometimes a third party such as someone at school, a parent, family relative or someone else reports it to the police.

Domestic voyeurism cases involving spouses, parents/step-parents, and other relatives and friends are considered aggravating because they involve a breach of trust. The accused is often the “head of the household” with a degree of authority and power over the people in the home and abusing this position is considered an aggravating factor by the Crown and courts.

The maximum punishment for voyeurism in Canada is currently 5 years in prison and a criminal record as per CC s. 162 (5)(a). While the maximum sentence is normally reserved for cases involving accused with prior custodial records, even first time voyeurism offenders face the realistic prospect of a lengthy jail sentence if found guilty, particularly in cases where there is a relationship of trust between the accused and the victim, or in all cases involving children under age 18.

When charges are laid the accused will normally be prevented from going back to the family home and from communicating with any alleged victims (spouse, ex, children, stepkids, etc.).

Whether the discovery is of a recording device or images of the complainant themself, the accused will normally be held for bail or released from the police station on a Form 10 Undertaking with conditions not to attend at the family home, have contact with the alleged victim(s), and possibly not possess devices capable of recording video/photos, such as a cell phone.

No-contact conditions are typical in domestic voyeurism cases which are investigated under the umbrella of IPV/domestic violence incidents in Ontario. Domestic classified cases are mandated by the province to be vigorously prosecuted meaning charges will be laid in virtually all cases where supporting evidence exists regardless of whether the alleged victim wants the accused to be charged or not.

In some cases (though not as common in voyeurism cases), the alleged victim will not want the accused to be charged. They may have changed their mind regarding how they feel about the incident, may not want to see their spouse go to jail, or not want their spouse to be rendered unable to financially support the family because of a criminal record. If the accused is not a Canadian citizen, they may lose their immigration status with IRCC and be deported from the country upon the completion of their sentence if found guilty.

While the alleged victim is not the decision maker and does not get to decide whether the charges are dropped or not, those looking to help can file a supporting affidavit to try to help the accused if they wish.

Defending voyeurism accusations made by family members, children and stepchildren (and/or their friends), and other people in close proximity to your household.

Not everyone who is accused of voyeurism is guilty. Some people are innocent and have been accused by someone motivated by jealousy, anger, hatred or financial gain. Sometimes a relationship separation has occurred and one party seeks advantages in family court regarding custody or access to the children. A stepchild who disapproves of their parent's partner (or them moving in) may fabricate a story of them spying on them to try to break up the relationship.

Like other cases arising from within the home, it is important to note that the relationship between the accused and the members of the household accusing them of voyeurism is often complicated. In cases where toxic relationships exist between spouses, their children, stepkids, and exes, there may be significant motivation to fabricate evidence leading to false arrests and charges for voyeurism.

Cases involving children, stepchildren, and their friends

The accused may be alleged to have made or acquired photos/videos of their partner’s child(ren), their friends, or other relatives. Sometimes the relationship between an accused stepdad and their stepchild is rocky. A stepchild may not approve of the relationship between their mother and the accused and fabricate voyeurism allegations (sometimes with the help of a friend) to break them up and get him out of the house.

Sometimes the friend of a child/stepchild in the house sees or hears something suspicious. They then tell this to their own parents, teacher, social worker, or another adult in authority who reports it to the police. The police will then interview potential witnesses and may obtain a warrant to search the accused's home and electronic devices.

A heavy handed reaction is justified in cases of actual wrongdoing however sometimes innocent people are accused of voyeurism which can have devastating effects for someone who has worked their whole life to build their career, relationships, and reputation. Even if they are ultimately acquitted and avoid a criminal record/going to jail, they still will be looked upon with stigma by many who wrongly assume that “where there's smoke, there's fire”.

Sometimes innocent people are wrongly charged with voyeurism by the police.

Voyeurism, particularly when it involves minors, is reprehensible behaviour, but we must not forget that sometimes innocent people get accused and charged. False charges occur for many reasons, some of which are true misunderstandings of what happened. The alleged victims or other reporting third parties can sometimes be genuinely mistaken. False allegations are not always the result of malicious dishonest complainants. Some complainants simply have the facts wrong despite believing otherwise.

In cases where alleged voyeurism involves someone under the age of 18 the accused may also be charged with making and possessing child pornography, which carries a mandatory minimum sentence of 6 months in jail, a possible sex offender registration, and other conditions for the rest of their lives (restrictions of phone/computer/internet use, going to parks, etc.).

While these are extremely serious allegations it is important to remember that in Canada everyone is innocent until proven guilty. Just because you are accused of something doesn’t mean you did anything wrong. All forms of voyeurism charges, whether they arise from within the home or not, must be fully defended as your livelihood and freedom will depend on the outcome of the case.

Are voyeurism charges ever dropped prior to trial? What should someone do if they have been charged with voyeurism (received an Undertaking or Release Order for CC s. 162 (1))?

Sometimes the Crown’s case will fall apart and they will agree to drop (withdrawn or stay) the charges for reasons such as:

1. Unreliable or unavailable Crown witnesses
2. New exculpatory information being brought forward by the defence
3. Additional video or audio evidence that disproves the Crown's theory
4. Witness recantations and admissions of dishonesty
5. Charter rights violations relating to home searches, confessions, and other rules of criminal procedure

Voyeurism charges originating from the home, cottage, etc. sometimes involve multiple Crown witnesses whose story may not align in a logical way. In cases where the spouse, step children and/or their friends have fabricated evidence or lied to the police, all of their statements to the police, 911, and anyone else must be fully examined, compared and scrutinized.

Given the seriousness of the offence, everyone who receives an Undertaking (Form 10) or Release Order (Form 11) for voyeurism or any other related offence (mischief, child pornography, publish intimate image, etc.) should consult with and hire a criminal defence lawyer immediately to start working on their defence.

The accused may be in possession of other audio, video, text messages, or other evidence that calls into question or disproves the Crown's theory of the case.

Such exculpatory evidence may show that the recordings were made with the complainant's knowledge and consent or that they were not made for a sexual purpose. Additional media and information can sometimes be used to exonerate the accused and prove their innocence. The accused's lawyer must ensure that exculpatory evidence is not wasted and used effectively.

Exculpatory evidence needs to be introduced legally and at the right time to prove your innocence. If presented in the wrong way, or at the wrong time, a dishonest complainant may still be able to reshape their story. Ideally, you want to present the evidence (of them lying) in a way that is irrefutable and at a time that is too late for them to offer alternative explanations to incriminate you.

If a case is riddled with prior inconsistent statements and evidence of ulterior motives, the Crown may be satisfied that there is no reasonable prospect of conviction (RPC) and drop the charges for that reason. If the case proceeds to trial they can be used by the defence to convince the judge that the Crown cannot prove their case beyond a reasonable doubt.

Voyeurism cases often have triable issues that can work in the defendant’s favor so if you have been charged, or are looking to help someone else who has been, give us a call now to discuss your options.


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