While many countries allow their citizens the freedom of expression through the press and other forms of communication, there is sometimes the need to limit this freedom, when it interferes with the reasonable expectation of privacy that others also have. That was seemingly the case in Canada this past week. In the week of June 12, Canadian police arrested a Jeffrey Williamson, a man alleged to be the administrator of a “CanadaCreep” Twitter account. This account is known to post photographs and videos of women, placing an emphasis on their “private parts” i.e. breasts, buttocks and groins. While this account is known to have a variety of such footage, the charges were limited to only three videos which contained “upskirt” content of women in public places. These videos were the only ones that were found to be a violation of the Canadian voyeurism laws on its face. The other content of this page and others, while arguably a violation of one’s privacy, are seemingly permissible, despite the apparent invasion of a reasonably expectation of privacy. With that, the lawmakers are faced with the difficult task of refining the criminal code to limit the freedom of expression afforded to citizens, in order to protect the privacy of all citizens. Of course, the question of where to draw the line is one that is very difficult to answer.
Canada, much like the United States has it set of rights and freedoms that govern the country. The Canadian Charter of Rights and Freedoms of Part I of the Constitution Act of 1982 outlines these said rights and freedoms provided to its citizens. In the second “amendment” of this rule of law, labeled fundamental freedoms, the following is outlined:
- Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
The freedom of opinion and expression is for the most part unlimited, unless it is clear violation of an existing criminal code. For example, the three “upskirt” videos that Jeffrey Williamson was arrested for are seemingly a violation of R.S.C., 1985, c. C-46, s. 162, otherwise known as the criminal code on Voyeurism. Under this code:
(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.
As evidenced by the code, the scope of prosecutable crimes is fairly limited to instances where nudity, or an expectation of the ability to be nude exists. This essentially allows “perverts” to get away with other invasive acts which do not violate this code on its face.
What Can Be Done?
As it stands, the code on Voyeurism enables culprits to invade a reasonable level of privacy that many Canadian citizens may have. While R.S.C., 1985, c. C-46, s. 162 1 (c) leaves room for argument by criminalizing such content obtained “for a sexual purpose,” this said purpose is fairly hard to prove. As with most crimes, intent is hard to prove. In this particular case, many could argue that these said pictures and/or videos are simply slice-of-life footage as part of “street photography.” With that being said, it will be extremely difficult for Canadians to rely on subsection 1 (c) of the Voyeurism code to provide the privacy protection needed.
Peter Jacobsen, a media lawyer and member of the board of directors of Canadian Journalists for Free Expression, has called for an amendment of the criminal code to encompass protection of the victims affected by the acts of individuals like Jeffrey Williamson which go unpunished. While Jacobsen is the equivalent of what we would consider a Free Speech advocate here in the United States, even he is in favor of amending the Criminal Code in a way that outlaws “creep” photography.
While legal theorists like Jacobsen believe that amending the current Criminal Code is easier in theory than in practice, they are exploring ways to perhaps revise the language of R.S.C., 1985, c. C-46, s. 162. The revision is in the works, but I believe that a tweak to subsection 1 (c), or perhaps an addition of a subsection 1 (d) could be the solution. Ultimately, the legislature should find a way to incorporate a provision that covers pictures and/videos that are objectifying by a reasonable standard. For example, I believe subsection 1 (c) should be revised to read as follows:
(c) the observation or recording is done for a sexual purpose, or is objectifying in nature, by a reasonable standard.
This will ultimately open the door for the judicial system to assess such instances on a case by case basis, while maintaining somewhat of a reasonable standard.
In sum, governing bodies have the tough task of empowering citizens by allowing the freedom of expression while at the same time protecting certain liberties such as privacy. In order to keep a balance and protect the innocent victims such as those preyed upon by the “CanadaCreep” and others of the like, the criminal code, i.e. R.S.C., 1985, c. C-46, s. 162 must be amended to adequately protect the subject class from such intrusive acts.