Voyeurism as a Criminal Offence: A Consultation Paper
Part Two: Proposals For Voyeurism Offences
Penalties
Determining appropriate penalties for a voyeurism scheme raises a number of questions. One option would be to treat the offences for voyeuristic activity as dual procedure (or hybrid) offences. For a hybrid offence, the prosecutor may proceed either by way of summary conviction or by indictment. Section 787 of the Criminal Code provides that unless otherwise specified, the maximum penalty for a summary conviction offence is six months and/or a fine of $2,000. The maximum term of imprisonment for an indictable offence is set out in the penalty provision for the offence while the size of fine is in the discretion of the court. The decision to impose a fine is subject to the considerations set out in section 734 of the Criminal Code and, as with all punishments, must be consistent with the purpose and principles of sentencing.
If the Crown elects to proceed by summary conviction, the trial will be held before a provincial court judge (in Nunavat, before a designated justice of the peace or before a judge of the Nunavut Court of Justice). If the Crown elects to proceed by way of indictment, the accused person chooses the mode of trial. Specifically, the accused will be given a choice of a lower court judge alone, a superior court judge alone or a superior court judge and jury (in Nunavut the choice is between a judge of the Nunavut Court of Justice sitting alone (with or without a preliminary inquiry) or a judge of the Nunavut Court of Justice sitting with a jury).
The advantage of a hybrid offence is that it provides flexibility for an adequate and appropriate response to the gravity of the offence and the culpability of the offender. Among the factors which may be relevant to the decision to proceed by either indictment or by summary conviction are: whether the offence involves viewing as opposed to recording; the nature of the activities observed; the number of victims involved; the duration of the viewing or recording; the age or vulnerability of the victim; and other aggravating or mitigating factors.
Another issue for consideration is whether the penalty scheme should distinguish between criminal voyeurism committed by viewing and that committed by recording. For example, because recording produces a permanent record of the voyeuristic activity and may involve more planning and deliberation than simply viewing, should it be subject to higher penalties? A further question is whether distribution of voyeuristic images should be subject to a higher penalty than the criminal voyeurism offence given the potential to further violate the victim's privacy and thereby cause greater harm? Alternatively, should the penalty for all offences be the same?
As a point of reference, the penalties for the following (arguably comparable) offences may be of interest:
| Section | Indictment | Summary Conviction |
|---|---|---|
| Section 163/169 (makes, distributes obscene materials) | Two years | Six months |
| Subsections 163.1(2)(3) (makes, distributes child pornography) | Ten years | Six months |
| Subsection 163.1(3) (possession for the purpose of distributing or selling child pornography) | Ten years | Six months |
| Section 168/169 (mailing obscene materials) | Two years | Six months |
| Section 177 (trespass by night) | -- | Six months |
| Section 298/300 (defamatory libel known to be false) | Five years | -- |
| Section 301 (defamatory libel) | Two years | -- |
| Section 430 (mischief under $5,000) | Two years | Six months |
Questions:
- Should proposed legislation establish hybrid offences for each of the offences?
- Should the penalty for committing the offence of criminal voyeurism by recording be higher than that for viewing?
- Should the penalty for distribution of voyeuristic materials be higher than the penalty available for the viewing or recording of voyeuristic materials?
- What would be appropriate penalty ranges for the various offences?
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