Voyeurism as a Criminal Offence: A Consultation Paper

Part Two: Proposals For Voyeurism Offences

Police Surveillance

One question for consideration is whether the creation of Criminal Code offences to deal with voyeurism might affect the ability of the police to conduct surveillance of suspects for law-enforcement purposes. Section 487.01 of the Criminal Code allows a peace officer to obtain a warrant in circumstances where a search or seizure without one would violate section 8 of the Charter. The Supreme Court of Canada had held[25] that in the absence of a warrant, there was a violation of section 8 of the Charter where agents of the state engaged in surreptitious video surveillance of a person where that person had a reasonable expectation of privacy (in this case, a hotel room). Subsection 487.01(2) provides that the warrant for such surveillance may be issued for any device or investigative technique or procedure or "any thing" unless it would interfere with the bodily integrity of any person. Subsection 487.01(4) provides for video surveillance in any circumstances where the subject has a reasonable expectation of privacy. The subsection requires that a warrant be issued only in respect of the same offences listed in section 183 of the Criminal Code and in the circumstances specified in section 487.01. Currently, therefore, peace officers may conduct surreptitious video surveillance where the subject has a reasonable expectation of privacy only in respect of certain, specified offences and only with a warrant issued under section 487.01.

Lawful police surveillance for law-enforcement purposes would not be captured by the criminal voyeurism offence if the offence specifies for example that the viewing or recording must have been done intentionally for a "sexual purpose." Police surveillance that was done for the purpose of viewing a person while that person was nude, etc. might be captured by the second branch of the definition of the voyeurism offence. For example, the police might wish to conduct surveillance with a view to capturing activities with prostitutes occurring within particular premises in order to gather evidence to establish that common bawdy houses were being run by organized crime. As long as the surveillance was conducted under the authority of a warrant issued pursuant to section 487.01 of the Criminal Code, however, it would be lawful and would not make the officers involved liable.

With respect to surveillance which met the definition of voyeurism but was not authorized by section 487.01, or police investigative activity that involved distribution of voyeuristic visual representations, a further question is whether or not such activity would be authorized pursuant to section 25.1 of the Criminal Code (recently enacted pursuant to Bill C-24 An Act to Amend the Criminal Code, organized crime and law enforcement and to make consequential amendments to other Acts). It is interesting to note that section 25.1, while permitting designated senior officials to authorize otherwise illegal police activity in particular circumstances, is subject to the restriction that police may not engage in conduct that would "violate the sexual integrity of an individual." The scope of "sexual integrity" in the context of section 25.1 has yet to be determined by the courts, so it is difficult to predict whether or not voyeurism committed by police in the course of law enforcement would be authorized. Police activity would also be measured against the requirement, set out in paragraph 25.1(8)(c), that the police have reasonable grounds to believe "that commission of the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the investigation and the reasonable availability of other means for carrying out the public officer's law enforcement duties."