R v McKinnon, 2018 ONSC 4781 (Gareau):

[76] Section 162(2) of the Criminal Code defines the term “visual recording” to include photographic. Regrettably, there is no definition of what is intended by the phrase “surreptitiously” in the Criminal Code. The dictionary’s definition of surreptitious is “covert or clandestine”, or, in other words, something that is done secretly. In the case at bar, the photographs taken by the accused on his cellphone were not done secretly. The complainant testified that although her eyes were closed, she could hear the clicking of the cellphone and was aware that the accused was taking pictures of her. It is also a fact on the evidence that at the time these pictures were taken, the complainant was being restrained and therefore could not remove herself from the situation.

[77] In R. v. Jarvis, [2017] O.J. No. 5261, the Ontario Court of appeal dealt with the offence of voyeurism. In paragraphs 28-30 of that decision, Feldman J.A., speaking for the court, makes the following observations:
–[28] To come within the voyeurism offence, the observation or recording must be
done surreptitiously. Also the person who is observed or recorded must be in
circumstances that give rise to a reasonable expectation of privacy. There are
then three alternative elements that further delimit or define the offence. All three
indicate that it is the sexual integrity of the victim that is intended to be
protected.

–[29] The first focuses on the location of the victim: the offence occurs when the
victim is in a place where a person can reasonably be expected to be nude, to
expose their genitals, breasts or anal region, or be engaging in sexual activity.
The second focuses on what the victim is doing: the offence occurs if the victim
is nude or is engaging in sexual activity and the purpose of the perpetrator is to
observe or record the nudity or the sexual activity.
–[30] The third element is not circumscribed by the victim’s location, his or her
state of undress, or sexual activity. The offence is committed if the observation or
recording is done for a sexual purpose. Of course, all elements are governed by
the overall requirement that the person observed or recorded must be in
circumstances that give rise to a reasonable expectation of privacy.

[78] Apart from the requirement that the recording must be done “surreptitiously”, all the essential elements of the offence as set out in Jarvis have been established beyond a reasonable doubt in the case at bar.

[79] As noted in paragraph 87 in Jarvis,
Every person is entitled to expect to be able to protect their personal sexual
integrity and dignity from non-consensual visual intrusion by other people. While
the offence of voyeurism in s. 162 is intended to provide that protection,
Parliament has imposed a number of limitations in its application.

[80] One such limitation is that the act must be done “surreptitiously”. As stated in paragraph 88 of
Jarvis,
First, the observation or videoing of another person is only an offence if it is
done surreptitiously. It is not an offence to openly stare at another person or
video them in one of the three prohibited situations. Arguably, this limitation
recognizes and acknowledges that a person can consent to or acquiesce in being
stared at or videoed, if the person is aware that it is happening. Similarly, when a
person is aware that they are being observed or recorded, they can object, say no,
turn away, leave, or take other steps to protect themselves from such an intrusion
if it is unwanted.

[81] Paragraph 88 of Jarvis suggests that a person can consent or withdraw their consent if they know they are being recorded. As indicated by the court, a person can object, turn away or leave if they are aware they are being recorded in order to protect their integrity. The complainant, J.B., had no such option available to her; both her wrists and both her ankles were tied to a bed. She could not turn away, she could not leave. She had no way of protecting her privacy or dignity in preventing the images of her from being taken by the accused. This is tantamount to the images being taken secretively or in a clandestine manner. If the images are taken in a clandestine manner the person being recorded does not have an opportunity to flee, leave or take steps to protect themselves. The complainant, J.B., also did not have this opportunity on the facts of this case. If s. 162(1) of the Criminal Code does not apply to the facts of the case at bar where the complainant was rendered unable to prevent the pictures from being taken or to take steps to protect her personal dignity, then what was intended by Parliament in enacting that section, namely, the ability of a person to protect their sexual integrity and dignity from non-consensual visual intrusion by other people, is rendered meaningless.
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[83] In particular, I am satisfied beyond a reasonable doubt that the photographs taken by the accused of the complainant were taken “surreptitiously” as contemplated in s. 162(1) of the Criminal Code and in keeping with the intention of Parliament in enacting that section. By his own evidence, the accused acknowledged that he believed the complainant was sleeping during the last two pictures taken, meaning that she was unable to consent and was unaware that those pictures were being taken.