Skurka's Spin: Would Kate photographer get charged in Canada?
Steven Skurka, CTV legal analyst, appears in this file photo.
Published Wednesday, September 19, 2012 12:53PM EDT
Last Updated Wednesday, September 19, 2012 12:58PM EDT
The fallout from the publication of the topless pictures of the Duchess of Cambridge taken at a secluded chateau in Provence continues unabated.
The photos of Kate were originally published in Closer magazine and later in Italy's Chi magazine and Ireland's Daily Star (and soon a Danish magazine.) French police have raided the Closer office in Paris to obtain information to assist in revealing the identity of the photographer who took the sensational photos. Presumably this action follows a preliminary French criminal investigation which targets the photographer whose identity remains shrouded in mystery.
The prospect of a criminal prosecution against a paparazzi snapping some photos of a royal celebrity from a public road about a kilometre-and-a-half away likely appears as an unjustified overreaction to many people in our country. Could the same conduct lead to a criminal charge in Canada? The answer may be surprising.
The Criminal Code sets out the offence of voyeurism which was introduced to deal with the problem of secretive video recordings and photographs taken in washrooms and change rooms.The voyeurism offence also makes criminal the surreptitious photography of a woman's breasts for that explicit purpose in circumstances that give rise to a reasonable expectation of privacy. The section would not cover photographs, for example, taken on a nude beach or a travel photographer whose purpose was to record the local scenery. It would arguably not cover boaters snapping pictures from an adjacent lake or river.
In the case of the Duchess of Cambridge the evidence that she could reasonable expect her conduct to be private is compelling. The photographer's clear purpose was to take salacious semi-nude photos of Kate to sell to magazines and newspapers for profit. Under the strict definition of voyeurism in Canadian criminal law, the photographer might be criminally liable. However, the issue of whether it would be in the public interest to launch such a prosecution would likely forestall any criminal charges.
A civil action could be actively pursued.
Listen to Steven's radio show, Closing Argument, every Sunday afternoon at 4:00ET on NewsTalk 1010. You can also follow him on Twitter at @LegalAnalyst