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My wife is older than age of majority and can freely give consent. She has a specific kink of wanting to be upskirted in shops.

If I have her consent, can I do this without getting in trouble?

If she revokes her consent during or after recording upskirt, will I get in trouble? (for example get consent, then recording, then revoke consent while recording)

This question only needs to be answered under Canadian law, but I also want to know how it is dealt in other countries where it is normally illegal (TIL upskirting is not illegal everywhere).

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In the UK, the law was recently changed to outlaw non-consensual upskirting – without consent is crucial. Canada does not appear to have such a specific law, but the Voyeurism law covers some of that ground. What you are not allowed to do is:

surreptitiously, observe[] — including by mechanical or electronic means — or make[] 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.

This blog article looks at the difficulty of knowing where one has an "expectation of privacy", since this is a new law with little case history behind it. R v Jarvis seems to be it as far as case law goes. The court allows that many things may go into a reasonable expectation of privacy for this law.

Relevant considerations may include (1) the location the person was in when she was observed or recorded, (2) the nature of the impugned conduct (whether it consisted of observation or recording), (3) awareness of or consent to potential observation or recording, (4) the manner in which the observation or recording was done, (5) the subject matter or content of the observation or recording, (6) any rules, regulations or policies that governed the observation or recording in question, (7) the relationship between the person who was observed or recorded and the person who did the observing or recording, (8) the purpose for which the observation or recording was done, and (9) the personal attributes of the person who was observed or recorded. This list of considerations is not exhaustive and not every consideration will be relevant in every case.

The line that the Canadian court drew is extremely fine. There is no absolute exemption for consensual acts, instead the courts would engage in a holistic balancing act. The fact that consent was included as a mere factor suggests that consent is not a safe harbor.

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    The considerations listed, including "awareness of or consent to potential observation or recording" point is only used to determine whether a "a reasonable expectation of privacy" exists. That's a separate question from whether the victim consented and whether consent is a valid defence. Consent is a general defence against all crimes, with various crimes and circumstances excepted.
    – Ross Ridge
    Aug 23 '20 at 15:43
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    I would also think that something done by consent of all involved parties could not possibly by "surreptitious" by any reasonable definition of "surreptitious." Granted, definitions used in law aren't always reasonable.
    – reirab
    Aug 23 '20 at 22:07
  • @reirab I don't think there is "consent of all involved parties". What about other customers in the shop? Employees and security? Children shopping with parents? (how would parents explain to their kids)
    – lssrkzawb
    Aug 24 '20 at 0:43
  • @lssrkzawb I was thinking "all involved parties" in regards to the crime of voyeurism discussed in this answer, not necessarily people who may merely witness the act in question. Obviously, make sure you're not taking objectionable photos of anyone else without their permission in the process. Granted, I was kind of assuming from your question that this would be done discreetly. Whether it's illegal or not, I'd not recommend it in sight of anyone else, especially children. At the very least, it could get you kicked out of and banned from wherever it's done, even if no criminal laws are broken.
    – reirab
    Aug 24 '20 at 14:27
  • If the husband is taking the photographs with the wife's knowledge and consent (and even more because she wants him to), then how does the wife have any expectation of privacy with respect to the husband's taking those photographs? I am unable to imagine any line of reasoning that would lead to the conclusion that she might have such an expectation.
    – phoog
    Aug 24 '20 at 16:46

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