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The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.

For full contact information and a brief bio, please see David's profile.

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The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.

This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.

Tuesday, August 29, 2006

First conviction under Canada's new voyeurism law 

Canada's new video voyeurism law is getting its first test after a man in Nova Scotia has pleaded guilty to using a video camera to covertly tape a young child taking a bath. The accused has also pleaded guilty to creating child pornography.

N.S. man pleads guilty to voyeurism:

A Nova Scotia man has pleaded guilty to using a video camera to secretly tape a girl in a bathtub.

During a court appearance in Amherst on Tuesday, Winston Charles Patriquin, 33, from Port Howe, also pleaded guilty to a charge of making child pornography.

Police began investigating in February after someone saw what Patriquin was recording on his video camera.

"Essentially they involved putting up a ladder against the side of a house and using a video camera to film a child in the bathtub," said Crown attorney Craig Botterill.

Patriquin was charged under the new voyeurism section of the Criminal Code, making him the first case in Canada, according to the Crown.

New law makes recording illegal

The law, which was passed in November, makes it illegal to "surreptitiously observe or make a visual recording" for a sexual purpose.

Patriquin also faced charges of accessing and possessing child pornography, but the Crown plans to withdraw them after working out a deal with the defence.

Botterill said that deal will keep a child off the witness stand.

"It's important wherever possible to try to spare a child of having to go through the trauma of testifying in court," he said.

In return for guilty pleas to voyeurism and making child pornography, Patriquin will agree to a 90-day jail sentence.

The deal also calls for two years probation with intensive treatment and counselling. Patriquin will have to supply a DNA sample and his name will be placed on the national sexual offender registry.

Botterill said he considered pushing for a one-year jail sentence. But given there is no precedent for the crime of voyeurism and Patriquin had no criminal record, he decided there was a chance Patriquin would do no jail time at all.

Botterill said the public should know that no child was sexually assaulted, "and in fact the child was unaware that she was being filmed."

Patriquin will be sentenced on Sept. 28.

The relevant section of the criminal code reads:

Criminal Code


Sexual Offences


162. (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;

(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or

(c) the observation or recording is done for a sexual purpose.

Definition of “visual recording”

(2) In this section, “visual recording” includes a photographic, film or video recording made by any means.


(3) Paragraphs (1)(a) and (b) do not apply to a peace officer who, under the authority of a warrant issued under section 487.01, is carrying out any activity referred to in those paragraphs.

Printing, publication, etc., of voyeuristic recordings

(4) Every one commits an offence who, knowing that a recording was obtained by the commission of an offence under subsection (1), prints, copies, publishes, distributes, circulates, sells, advertises or makes available the recording, or has the recording in his or her possession for the purpose of printing, copying, publishing, distributing, circulating, selling or advertising it or making it available.


(5) Every one who commits an offence under subsection (1) or (4)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.


(6) No person shall be convicted of an offence under this section if the acts that are alleged to constitute the offence serve the public good and do not extend beyond what serves the public good.

Question of law, motives

(7) For the purposes of subsection (6),

(a) it is a question of law whether an act serves the public good and whether there is evidence that the act alleged goes beyond what serves the public good, but it is a question of fact whether the act does or does not extend beyond what serves the public good; and

(b) the motives of an accused are irrelevant.

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