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Originally Posted by Makarov

Ok, let's use this hypothetical to avoid some of the practical issues here. Peeping Tom surreptitiously observes a nude Bathing Bill through Bathing Bill's bathroom window. Bathing Bill is not at any time aware that he is being observed and blissfully continues to bathe himself. Some time later, Bathing Bill dies. Some time after Bathing Bill's death, a neighbour finally summons the courage to report that she observed Peeping Tom in the window outside Bathing Bill's bathroom window that night some time ago. So Bathing Bill never ever becomes aware that he was watched that night. Should Peeping Tom be guilty of a criminal offence?

I say yes. I say so because I think it is harmful to society and to the lives of all Canadians if we cannot bathe and carry on with our most personal actions if we are afraid that someone out there might be observing us. That is a harm to society writ large.

I agree with this, but in this case the peeper was caught so there was actually harm done, and I agree the behaviour in general even if not caught is harmful to society (in that it increases the chance that they'll be caught and bring harm).

But what if they were never caught? What if the peeper saw what they saw, and mentally used it to feed their fantasy life, but never got caught?

What if the peeper didn't actually peep, but drew a picture of someone they knew in the shower and used that privately?

Or took a picture of someone who consented to the photo, then photoshopped someone else's head on it without their knowledge, and used that privately?

It just seems to be so very close to thought crime, and I think harm (direct or in general to society) has to be a factor, we can't just prosecute someone because they're different. Even a pedophile (who didn't choose to be one) shouldn't be prosecuted just because they are attracted to a child they see while walking down the street.

Originally Posted by Makarov

I would also argue (and this is where the SCC and I agree) that the state has a valid interest in criminalizing conduct in order to avoid preemptively avoid harm. In this case, criminalizing the behaviour of Peeping Tom, whether Bathing Bill is aware his privacy is being infringed or not, seeks to avoid Bathing Bill ever having to become aware that his privacy was infringed.

That makes sense, and I think I'd agree with that as well, but I think the lawmakers would bear a great responsibility to ensure that the conduct they are criminalizing does in fact a) lead to harm and b) criminalizing it results in the desired avoidance.

I'm just not convinced that those are the case in this case. Gore sites are a great example, it seems to me that they should be almost identical to child porn in every respect I can think of.

Originally Posted by Makarov

EDIT TO ADD: Interesting discussion btw. I love these sorts of issues.

I like them because while I know how I think and react to scenarios, I want to know why I do, and I want to know that my reasons are good, are they founded in reason, or do I have them just because I gleaned them from the society I live in.