[Savvy27]

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?

Sure, Peeping Tom should be guilty. But I don't think this example applies. Let's say that Peeping Tom took pictures of Bathing Bill and then showed those pictures to Intrigued Ian. Has Intrigued Ian committed a crime by looking at the picture? Is he morally repugnant if he is aroused by it? If Ian keeps some of the pictures, has he violated Bill's privacy?

It's clear enough that BB had his privacy violated by PT. Harm to BB shouldn't be taken for granted, especially since you have noted that he died unaware of the violation. I think it is much less clear that Ian is guilty of any criminal action and from what I know of the law, the Canadian justice system doesn't either.

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, but I think this also relates more to the people who produce or are in any way involved with the taking of the pictures than those who simply consume them.

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.

The idea of criminalizing looking at the pictures holds some water because there is an argument to be made that people who look at pictures or videos of something being done may become more prone to acting it out. This relates to the R. v Sharpe case which was about writings and illustrations (I don't remember how compelling the argument of thoughts and viewings leading to actions was in the case, but it seems like a legitimate argument in this context). We are also well into the territory of criminalizing thoughts now, since nobody seems to be distinguishing between acquiring the porn for free and paying for it.

I think that for the sake of protecting children from being victimized, it is acceptable to criminalize possession, even if they had nothing to do with the production of material. I do understand Flanagan's argument though and agree with him that the law is logically inconsistent with every other type of crime I can think of.

It is also worth noting that Flanagan said he didn't think that they should be "jailed". From a libertarian perspective, there is an argument to be made that the deprivation of that persons liberty is too severe a penalty for the harm they are committing. He wasn't clear, so maybe I am giving him undue credit, but he may very well believe that financial penalties or court mandated therapy or something is a more appropriate reaction to that particular offense.