Mischief and voyeurism related sexual criminal charges

Police frequently use Mischief and Voyeurism offences to charge people for taking pictures or videos in what they deem to be an inappropriate manner. They assume such media will be used for sexual purposes.

Prior to Parliament codifying Voyeurism in Section 162 (1) of the Criminal Code, the police would commonly charge people with mischief for “peeping Tom” type behaviour or secretly recording or taking pictures of people engaged in sexual activity or stages of undress. Today, police will most often charge the accused with both offences simultaneously.

The reason for this is that the voyeurism charge can be more difficult to prosecute because it always requires proving that the circumstances gave rise to a “reasonable expectation of privacy” and also sometimes that the viewing was done for a “sexual purpose”. By also including the mischief charge the police/Crown Attorney will have another offence to fall back on should the case not be strong enough to support a conviction for voyeurism. This provides a fallback for incidents that occur in public places which are not as easy to prove. Unlike Voyeurism, Mischief merely requires proving unlawful interference with property.

This wide open definition of mischief allows the police to charge people for things they deem the public views as morally wrong (often in a sexual context) but that are not clearly codified as illegal. For instance:

A 60 year old man is arrested for openly taking pictures of fully clothed young women at the mall or in a park. Police responding to this call would likely charge this individual with mischief. According to their reasoning, since the young women may not like this behaviour, the 60 year old man is interfering with their use of the mall property. In private spaces such as malls and businesses, this reasoning may be easier to support as there may be policies regarding photography on the premises that patrons are supposed to adhere to.

If this individual was surreptitiously (secretly) trying to record up their skirts or down their blouses he would also be charged with voyeurism and possibly child pornography depending on the age of the girls.

How can it be an offence to take a picture in a public place? This isn’t North Korea.

The law is vague with regards to this issue. In Ontario, in the case of R. v. Taylor, 2015 ONCJ 449, an individual taking pictures on a public beach was convicted of mischief and received a short jail sentence and criminal record. In this case, the person allegedly videotaped a female in a bathing suit on a public beach in a way that was hidden and intentionally zoomed in on specific parts of her body. The Judge acquitted this individual of voyeurism (for lack of proving a sexual purpose) but found him guilty of mischief.

There are very few cases that address this issue. The case above appears to have aggravating factors that the public may agree with, in that it seemed particularly invasive, but other cases are not so clear. Some people get charged but ultimately resolve their case without going to trial. For many defendants it may not be worth taking the risk of being found guilty if they can resolve their case with a peace bond. Also, when a case goes to trial, particularly if it addresses an area of the law with little existing case law, it may also become a reported decision leading to the defendant being publicly associated with the case regardless of the outcome. Nobody wants a Google search associating their name any form of criminality, let alone voyeurism charges.

The internet and ease of distribution may impact how Judges and Crown Attorneys assess these cases in the future.

In the R. v. Taylor 2015 ONCJ 449 case, the Judge seems to indicate that the fact that an individual can easily spread, perhaps permanently, close up images/videos captured on a public beach over the internet was a part of his reasoning in supporting a conviction. The court found it reasonable for a beachgoer not to expect close ups of their private areas not to be recorded and distributed online (despite the fact that no pictures or videos were found to be not put on the internet in this case).

TTC cell phone mischief and voyeurism charges

A common place people get charged with mischief and voyeurism is on the TTC. Riders frequently complain of men using cell phone cameras to record other riders bending down or up their skirts. If the police become involved the individuals will be charged with mischief and possibly voyeurism and child pornography as well. All it takes is one person to think you are pointing your phone camera at them and you could be charged. A man, especially if alone and older, can very quickly be accused of acting “creepy” with his phone. The police may deem this to be interfering property if someone reports that it made them feel uncomfortable.

If a person willingly takes their clothes off in a public place how can this possibly be voyeurism? Why is there a reasonable expectation of privacy in a public place?

As of 2019 there are few cases or specific clear legislation that address this issue, however in the Ontario Court of Justice case of R. v. Lebenfish 2014 ONCJ 130, which involved an individual taking nude pictures of someone who voluntarily disrobed on a public beach, the trial Judge states: In the end, I am not persuaded that the defendant’s photographing of nude sunbathers at Hanlan’s Beach occurred “in circumstances that give rise to a reasonable expectation of privacy” with respect to such visual recordings. In that case the person was acquitted of voyeurism and mischief.

The law in this area is unsettled in Ontario. Both of the above noted cases are not binding on equal, out of province, or higher level courts. Until the Ontario Court of Appeal (for Ontario cases) or the Supreme Court of Canada rules on what exactly constitutes voyeurism or mischief in terms of taking pictures or videos in public areas the law will be determined on a case by case basis. Each trial Judge will assess each case and decide the fate of the accused.

This means that individuals who take pictures of people in public without their permission are taking a risk that they may be charged with mischief or voyeurism (or commonly both). Like most people who are charged with a criminal offence for the first time, they are surprised that their behaviour is considered a criminal act. From the perspective of the Police, at least in the GTA, such picture/video taking could possibly support a conviction. While the Judge ultimately will decide, even in cases where the individual is found not guilty, they still have dedicated likely a year of their life, a large amount of money funding their defence, and remain shamed and judged by their community.

The Police will often self-publish via press releases and report these types of charges to the media upon making an arrest. Rarely is the result of the case ever publicized if the charges are dropped or the accused is found innocent and exonerated.

Public sexual related offences are often reported to the media by the Police. Their reasoning is that they are protecting the public as it may help identify other “victims” who may have had a similar experience with the individual and to allow public awareness of the alleged individual (so people can be on the lookout).

While the initial charge (voyeurism, mischief, sometimes also child pornography) gets reported along with the person’s name, date of birth, face picture, etc. in the media, the outcome of the case usually is not. Even if the person who is charged is found not guilty, they are forced to live the rest of their lives with being labelled as the person who was accused of a sexual offence. Often they have already lost their job, family, and friends before even their first court appearance.

A person who is falsely accused and ultimately exonerated may still end up having their life and reputation ruined forever because someone thought they were acting “creepy” with their phone. Most people don’t think of or care too much about this until they themselves, or someone they care about, is subject to this extremely unfair treatment.

 

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