Voyeurism as a Criminal Offence: A Consultation Paper

Part One: Context

History

Over the past six years, the provinces and territories have expressed interest in creating a new offence to deal with voyeurism. At the Uniform Law Conference in August 2000, a motion presented by Saskatchewan at the Criminal Law Section with respect to criminal voyeurism was carried. The motion proposed:

That Part V of the Criminal Code be amended to create a specific offence that would prohibit surreptitious, non-consensual viewing, photographing or videotaping of another person in a dwelling house or business premises where there is an expectation of privacy and if the viewing, photographing or videotaping is done for a sexual purpose.

A similar resolution had been proposed earlier by New Brunswick at the Uniform Law Conference in August 1996.

Over the past year and a half the federal Department of Justice has been working with senior officials in the provinces and territories to identify relevant issues regarding voyeurism and to discuss options for public consultation on a voyeurism scheme. On February 12, 2002, Provincial and Territorial Ministers Responsible for Justice passed a resolution urging the Minister of Justice to amend the Criminal Code to criminalize voyeurism and the distribution of visual representations obtained through voyeurism.

Defining Voyeurism

There are two ways to define voyeurism: as a behaviour and as a sexual disorder. In general terms, a voyeur is "a person who derives sexual gratification from the covert observation of others as they undress or engage in sexual activities" (Canadian Oxford Dictionary). In this context, the behaviour is concerned with three things: the surreptitious nature of the observations; the private and intimate nature of what is observed; and sexual gratification. Voyeuristic behaviour may extend not only to the making of the voyeuristic images, but may include distribution of voyeuristic visual representations to others.

A second way to consider voyeurism is as symptomatic of a sexual disorder. A subgroup of the persons who engage in voyeuristic behaviour suffer from this sexual disorder. According to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders:

Voyeurism is viewing some form of nudity or sexual activity, accompanied by sexual arousal. To be classified as a sexual disorder, or a paraphilia, voyeurism must be characterized by observing unsuspecting individuals, usually strangers, who are naked or engaging in sexual activity, for the purpose of seeking sexual excitement.[1]

The voyeur usually does not seek any contact with the victim. The perpetrator may masturbate during the act of voyeurism or, more commonly, afterwards in response to the memory of what he or she observed.[2] It is only when this behavioural problem persists beyond a certain period that experts diagnose it as a paraphilia:

The diagnostic criteria for voyeurism are: (a), recurrent, intense sexually arousing fantasies, sexual urges or behaviours involving voyeuristic activity, and (b), the fantasies, sexual urges, or behaviours cause clinically significant distress or impairment in social, occupational, or other important areas of functioning… Many individuals include voyeuristic fantasy or behaviour in a repertoire of sexual fantasies. It is only when these fantasies become a focus for an extended period of time (six months or more) and cause distress or impairment in one's life that this would be diagnosable as a paraphilia. [3]

Most voyeurs engage in at least one other sexually deviant behaviour, usually exhibitionism or non-consensual sexual touching or rubbing.[4] There is also evidence that voyeurism occurs at an early stage along a continuum of sexual disorders that may become progressively more coercive and invasive.[5] Approximately 20% of voyeurs have committed sexual assault or rape.[6] In a number of Canadian cases, court have considered it relevant that persons convicted of crimes involving sexual and non-sexual violence have had a behavioural history which included voyeurism.[7] Moreover, studies have shown that men commit most sex crimes and women and children are almost always the victims.[8]

Another characteristic of voyeurism as a paraphilia is a high frequency of deviant acts per individual. For example, in one study of 411 men, 13% (62 men) admitted to being voyeurs and self-reported 29,090 voyeuristic acts against 26,648 victims.[9] Studies suggest that voyeurs justify their behavior with rationalizations or cognitive distortions,[10] convincing themselves, for example, that their actions do not cause any harm or that the victim actually wanted to be observed.[11] As with other sexual disorders, voyeurs characteristically have little empathy for the victim and have an impaired capacity for emotional or sexual intimacy.[12] The risk factors for recidivism are similar to those that pertain to other sex offenders.[13]

Voyeurism as a sexual disorder manifests early in life (the average age is 15), is chronic, and tends to last a lifetime, unless treated.[14]

Limitations of the Current Law

Recent interest in the creation of a voyeurism offence also has been generated, in part, by occurrences for which there are currently no appropriate responses in the Criminal Code. The limitations of the current law are evident in two contexts. The first is that while some other offences in the Criminal Code cover particular aspects of voyeurism, there is no comprehensive statutory response to voyeurism. For example, if recorded images that meet the definition of child pornography include voyeuristic activities involving children, they may be captured under section 163.1 of the Criminal Code. Similarly, if voyeurism generates records of obscene activities it might be captured by section 163 of the Code. Paragraph 173(1)(a) (indecent acts) would apply only to the voyeur who, while viewing or recording others, was also performing an indecent act in a public place, such as masturbating, at the same time. While voyeurism may be captured by section 177 (trespassing at night), the scope of the offence is quite narrow as it applies only to persons who loiter or prowl at night near a dwelling house on the property of another person. The mischief provisions of paragraphs 430(1)(c) and (d) apply to voyeurism to the extent that the activity interferes with the victim's "lawful use, enjoyment or operation of property." Unfortunately, courts have disagreed about the scope and meaning of "lawful use, enjoyment or operation of property" so section 430 is of limited use as a vehicle for prosecuting voyeurism.[15]

The limitations of the current Criminal Code provisions to deal with surreptitious recording were illustrated by a recent incident in Kingston where a cadet videotaped his consensual sex acts with a woman without her knowledge and the tapes were later shown at parties on a military base. The Crown advised police that the facts of the case did not involve any offences under the Criminal Code. Therefore, the only avenue to address the harm suffered by the victim was for the military to bring charges relating to military misconduct pursuant to the National Defence Act.[16]

Conceptualizing a Voyeurism Offence

Justifying the creation of a voyeurism scheme in the Criminal Code involves a consideration of the harm that such a scheme is intended to address. The harm can be assessed as the breach of a right to privacy that citizens enjoy in a free and democratic society; alternatively, voyeurism can be conceptualized as a sexual offence.

(a) As a privacy offence

Other than the electronic surveillance provisions of the Criminal Code, there is no criminal offence of breach of privacy per se. Concerns about protection of privacy do arise as an element of some specific offences in the Code, but none of the provisions is a complete answer to fact situations where an individual acts as a voyeur by observing or recording the actions of another person without that person's knowledge or consent.

The Canadian Charter of Rights and Freedoms considers privacy rights in the context of relationships between the individual citizen and the state. The issue of the circumstances which generate a "reasonable expectation of privacy" by citizens who are subject to search and seizure by the state or state actors has been considered in jurisprudence regarding section 8 of the Charter. In the search and seizure context, the Supreme Court of Canada has held that a determination of whether the individual had a reasonable expectation of privacy is answered by considering whether the person had possession or control of the property; whether he or she had the ability to regulate access to the property; whether there was a subjective expectation of privacy; and whether there was an objective assessment of the reasonableness of the expectation of privacy.[17]

The privacy rights of complainants have been given constitutional consideration in the context of section 7 of the Charter. In R. v. Mills[18] the Supreme Court of Canada upheld the constitutional validity of sections 278.1 to 278.91 of the Criminal Code concerning the production of a complainant's personal records in sexual assault trials. The Court held that the scheme did not offend section 7 of the Charter. In doing so, the Court acknowledged that there were conflicting rights at play. The accused's right to make full answer and defence was to be balanced against the complainant's privacy and equality rights.

With regard to accused persons, the section 7 liberty interest has been held to include a right to privacy. As Justice La Forest commented in R. v. Dyment[19], "privacy is at the heart of liberty in a modern state." From a constitutional perspective, it can be said that privacy surfaces as a constitutionally protected right in the context of both sections 7 and 8 of the Charter regarding accused persons. With regard to complainants and private individuals generally, there appears to be a constitutionally inspired recognition that a basic right to privacy is an element of living in a free and democratic society. Nonetheless, it cannot be said that the Charter provides citizens with a general, constitutionally protected right to privacy.

The right to privacy is expressly recognized by various international instruments[20] which extend to all persons the right to be protected from arbitrary or abusive interference with their privacy. The rights enshrined in these international instruments are expected to inform policy choices regarding the right to privacy in the domestic context.

In relationships between individuals, privacy rights are protected in the civil context in some jurisdictions through provincial legislation. To date, privacy legislation exists in British Columbia, Saskatchewan, Manitoba and Newfoundland. The privacy rights of Quebec residents are protected through the Civil Code of Quebec and also by section 5 of the Quebec Charter of Human Rights and Freedoms.

It is also interesting to note that "An Act to guarantee the human right to privacy" (Bill S-21) was introduced by Senator Finestone as a Private Member's Bill on March 13, 2001, and was given First Reading. The Bill was referred to the Standing Committee on Social Affairs, Science and Technology on April 26, 2001. It was last debated at Second Reading on February 5, 2002, at which time the debate was adjourned.

The proposed provisions of the "Privacy Rights Charter," as the Act would be called, seem to indicate that it is to operate in both civil and criminal spheres of federal jurisdiction[21]. At the very least, it is an indication that there is interest in some quarters for formally recognizing a privacy right for individual citizens.

(b) As a sexual offence

The sexual aspect of the offence arises from one or two sources (and in any given case, both may be operative): the purpose for which the observation is made (e.g. sexual arousal of the voyeur) or, alternatively, the nature of the subject observed (e.g. viewing or recording the victim's sexual organs or the victim engaged in explicit sexual activity). The policy justification for prohibiting voyeurism in this context is that it prevents a private citizen from sexually exploiting another private citizen. The sexual exploitation occurs the moment that the voyeur observes or records the victim, even if the victim is not aware of it.

(c) Common ground: Intersection of a privacy offence and a sexual offence

The harm to be addressed by a voyeurism offence can be assessed from two perspectives. From a policy perspective, it can be argued that the state's interest in protecting the privacy of individual citizens and its interest in preventing sexual exploitation of its citizens coalesce where the breach of privacy also involves a breach of the citizen's sexual or physical integrity.

Second, harm is also assessed from the perspective of how frequently a particular offence occurs. Because of the surreptitious nature of voyeurism, victims usually do not know that they have been viewed or recorded which, in turn, leads to under-reporting of voyeuristic behaviour.[22] It is not known what percentage of voyeuristic behaviour is the result of voyeurs with a personality disorder. As noted above, though, there is evidence that voyeurs who suffer from a paraphilia tend to have a high incidence of voyeuristic activity per individual.[23]