SELECTED CASE LAW
NEWFOUNDLAND & LABRADOR:
In 2011 CanLII 13633, the offender, FG, pleaded guilty to one count of voyeurism after recording his 17-year-old stepdaughter changing in her room. He claimed that he recorded her for disciplinary reasons and not for a sexual purpose, but admitted he had made a visual recording of a person in circumstances giving rise to a reasonable expectation of privacy contrary to s. 162(1)(a) of the Criminal Code. Despite the fact that the video showed F picking up his stepdaughter’s underpants and sniffing them on camera,[1] the Crown reluctantly accepted that the act was not done for a sexual purpose (and as a result charges were not laid under s. 162(1)(c)). The Court found that:
The damage to the complainant’s sense of personal security was high. The expectation of privacy was extremely high. It seems to me that the principal focus of the sentence here should be denunciatory. It should also strive to deter this person and others from this type of offence. In this age of computers, “iPhones”, facebook, and YouTube, there is a very real risk that images like this could be disseminated around the world. The sentence should also reflect the concern of the court to ensure the protection and integrity of children. Even though this person was not an infant, she was very much a young person and this behaviour must be sharply denounced.[2]
Nevertheless, given that FG was a first time offender, and given that the case law suggested a low sentencing range, the Court sentenced him to a conditional sentence of 3-months imprisonment served in the community, a 3-year period of probation and several ancillary orders, including being subject to continuous electronic monitoring during his period of incarceration, an order not to communicate with his step daughter, an order to provide a DNA sample, and order of forfeiture of the video camera used to make the recording.[3]
[1] The Court writes, “His counsel explained this act by telling me that his client assured him that he was merely checking to see if the undergarment needed to be laundered. Crown Counsel seemed skeptical about this.”
[2] 2011 CanLII 13533 at 9-10.
[3] The Court writes, “…I agree with Crown counsel that the sentences cited all seem to be on the low side, but each case presents with compellingly different facts that can nearly all be distinguished from the case before me. Additionally, in some cases, the Crown has proceeded by way of summary conviction which would automatically reduce the range of sentence since the maximum for these offences would be six months imprisonment. In this case, the Crown proceeded by indictment which automatically increases the range up to a maximum of five years. […] Most of the cases I have reviewed seem to suggest that this criminal activity of watching is lower on a scale of blameworthiness than an actual touching. This theory, in my respectful view, tends to minimize the traumatic effect of this crime on the victim as an intrusion upon his or her privacy.”: 2011 CanLII 13533 at 17.
Criminal Offence(s): Voyeurism