Voyeurism as a Criminal Offence: A Consultation Paper
Endnotes
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[1] Quoted in Meg S. Kaplan and Richard B. Krueger, "Voyeurism: Psychopathology and Theory" in Sexual Deviance: Theory, Assessment and Treatment (New York: The Guilford Press, 1997), pp. 297-310, at p. 297.
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[2] R. Karl Hanson and Andrew J.R. Harris, "Voyeurism: Assessment and Treatment" in Sexual Deviance: Theory, Assessment and Treatment (New York: The Guilford Press, 1997), pp. 311- 331, at p. 315.
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[3] Meg S. Kaplan and Richard B. Krueger, "Voyeurism: Psychopathology and Theory" in Sexual Deviance: Theory, Assessment and Treatment (New York: The Guilford Press, 1997), pp. 297-310, at p. 297.
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[4] Supra, footnote 2, at p. 313.
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[5] Supra, footnote 2, at p. 314.
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[6] Hanson, R. Karl, and Andrew J.R. Harris, "Voyeurism: Assessment and Treatment," in Sexual Deviance: Theory, Assessment and Treatment (New York: The Guilford Press, 1997), pp. 311 -331, at 314. It should be noted that there is no offence of "rape" in the Canadian Criminal Code. Depending upon the facts of the particular instance of sexual assault, a rape may be captured by one of three sections in the Criminal Code: sections 271, 272 or 273.
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[7] See R. v. Dickinson, [1984] O.J. No. 100 (Ont. C.A.); R. v. Wilson, [1996] A.J. No. 731 (Alta. C.A.); R. v. Deforge, [1986] B.C.J. No. 648 (B.C.C.A.); Voyeurism was found by the court to be part of a blend of sexual disorders suffered by an accused in a successful dangerous offender application brought for sexual offences in R. v. Johnson, [1997] O.J. No. 2535 (Ont. C. J. (Gen. Div.)); Prior voyeuristic behaviour was accepted by the court as part of an agreed statement of facts relevant to sentencing in R. v. A.D.R., [1991] N.J. No. 154 (Nfld. S.C.); R. v. A.B.C., [1991] A.J. No. 1118 (Alta. C. A.) (In the latter case the court found that the voyeurism was opportunistic rather than planned); in R. v. Currie, [1997] 2 S.C.R. 260 the Supreme Court of Canada restored a finding that the offender was a dangerous offender. In doing so, the court accepted the evidence of the Crown expert as well as that part of the defence expert's testimony which established
"the profound nature of the respondent's sexual problems"
which included (in addition to a record of sexual offences) an"impulsive personality disorder and a polymorphous sexual deviation"
that"includes voyeurism, heterosexual pedophilia and hebephilia and impulsive sexual aggressiveness."
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[8] Supra, footnote 1, at p. 299. See also the comments of Mr. Justice Cory in R. v. Osolin, (1993), 86 C.C.C. (3d) 481 (S.C.C.), at p. 521, where his Lordship indicated
"It cannot be forgotten that a sexual assault is very different from other assaults. It is true that it, like all the other forms of assault, is an act of violence. Yet it is something more than a simple act of violence. Sexual assault is in the vast majority of cases gender based. It is an assault upon human dignity and constitutes a denial of any concept of equality for women. The reality of the situation can be seen from the statistics which demonstrate that 99 percent of the offenders in sexual assault cases are men and 90 percent of the victims are women. See Gender Equality in the Canadian Justice System: Summary Document and Proposals for Action (April 1992), at p. 13."
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[9] Abel, G.G., and J.L. Rouleau, "The Nature and Extent of Sexual Assault," in W.L. Marshall, D. and R. Laws, and H. E. Barbaree (eds.), Handbook of Sexual Assault: Issues, Theories and Treatment of the Offender (New York: Plenum Press, 1990), pp. 9-21, at p. 15.
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[10] Abel, et. al., Treatment Manual: The Treatment of Child Molesters (Atlanta, 1984); Hunter et al., "The reliability and discriminative utility of adolescent cognitions scale for juvenile offenders," Annals of Sex Research, 4, 281-286.
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[11] Ibid.
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[12] Supra, footnote 2, at pp. 317, 318.
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[13] Ibid, at p. 328.
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[14] Supra, footnote 1, at 298
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[15] For example, in R. v. Maddeaux (1997), 115 C.C.C. (3d) 122, the Ontario Court of Appeal rejected the notion that "enjoyment" of property should be given its meaning at property law, that is, to hold possession of or title to property without interference. The court held that "enjoyment" of property was broad enough to encompass the right to experience the joy or pleasure associated with the property. This decision was applied in R. v. Almeida, [2001] O.J. No. 5179 (Ont. Sup. Ct.), to find an accused guilty of mischief who had mounted a surveillance camera on the second story deck of his house which recorded all activity in his neighbour's yard on a 24 hour basis. The recording was done over the neighbour's written objections. A different approach was taken by the Quebec Court of Appeal in R. v. Drapeau (1995), 96 C.C.C. (3d) 554, where the court held that "enjoyment" did not include activities which merely diminish the pleasure derived from the property by its owner, as opposed to a restriction on the entitlement or exercise of a right in relation to property. In Drapeau the accused's conduct consisted of watching and staring at his neighbours and making objectionable noises.
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[16] Of the three individuals involved in the case, one was acquitted of various offences under the National Defence Act. One individual pleaded guilty to two counts of disgraceful conduct and to one count of engaging in conduct to the prejudice of good order and discipline pursuant to sections 93 and 129, respectively, of the National Defence Act. He received a severe reprimand and a fine. Prior to trial he was administratively released from the Canadian Forces. The cadet who actually engaged in the sexual activity with the victim was found guilty of two counts of disgraceful conduct, fined and dismissed from the Canadian Forces.
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[17] R. v. Edwards, [1996] 1 S.C.R. 128.
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[18] [1999] 3 S.C.R. 668.
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[19] [1988] 2 S.C.R. 417, at p. 427.
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[20] See, for example, the International Covenant on Civil and Political Rights, Article 17 (Date of accession by Canada: May 19, 1976); American Declaration of the Rights and Duties of Man, Article V (Canada has been a member of the Organization of American States since 1990); American Convention on Human Rights, Article 11; European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 8 (the privacy rights protected in the latter are in respect of the individual vis-à-vis the state).
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[21] Section 9 of the proposed Act states that it
"applies to all persons and matters coming within the legislative authority of Parliament."
Section 3 would confer privacy rights on individuals; it states that every individual's right to privacy includes physical privacy, freedom from surveillance, freedom from monitoring or interception of their private communication, and freedom from the collection, use and disclosure of their personal information. The policy underpinning the Privacy Rights Charter is set out in the preamble. The Act recognizes privacy as"a basic human right of every individual and a fundamental value reflected in international human rights instruments to which Canada is a signatory."
Privacy is also defined as"an interest in the public good that underpins the relations of mutual trust and confidence that are fundamental to the Canadian social fabric."
Finally, privacy is recognized in the preamble as"essential to the preservation of democracy and the full and meaningful enjoyment and exercise of many of the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms."
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[22] Statistics Canada reports that for 1999 there were 4,538 incidents of trespass at night, 582 offences against public morals (which includes section 163.1 offences concerning child pornography), 3,346 cases of mischief over $5,000 and 309,217 cases of mischief under $5,000. There is no breakdown indicating which of these offences involved voyeuristic activity. Canadian Centre for Justice Statistics, Statistics Canada, 1999.
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[23] Supra, footnote 10.
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[24] The common law doctrine of res judicata precludes multiple convictions for the same criminal act , even when the matter is the basis of two separate offences. See also R. v. Kienapple, [1975] 1 S.C.R. 729. A related concept is found in section 12 of the Criminal Code in respect of an offence which is punishable under more than one Act of Parliament.
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[25] In R. v. Wong [1990] 3 S.C.R. 36.
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[26] These provisions are incorporated by reference into the child pornography provisions by subsection 163.1(7). Subsections 163(3), (4) and (5) provide as follows:
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(3) No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.
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(4) For the purposes of this section, it is a question of law whether an act served the public good and whether there is evidence that the act alleged went beyond what served the public good, but it is a question of fact whether the acts did or did not extend beyond what served the public good.
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(5) For the purposes of this section, the motives of an accused are irrelevant.
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[27] R. v. Sharpe (2001), 150 C.C.C. (3d) 321 (S.C.C.), at p. 357.
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[28] Ibid, at p. 358.
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