In R. v. Downes, 2022 BCCA 8 January 11, 2022, the accused was convicted of the offence of voyeurism contrary to section 162(1)(a) of the Criminal Code. This section states as follows:
162 (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes 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.
The offence involved the accused “surreptitiously taking photographs (and thereby made a visual recording) of adolescent male hockey players (T.R. and G.C.) in stages of undress in a dressing room while he was coaching spring hockey teams”.
The accused appealed from conviction. The British Columbia Court of Appeal described the primary issue raised by the appeal as being (at paragraph 39):
…does one who surreptitiously takes a still photograph (by, for example, using a cellphone) of a fully clothed person in a dressing room when no one else is present or expected to be present commit the offence described by s. 162(1)(a)?
A majority of the Court of Appeal decided that the conviction should be set aside and a new trial ordered. The majority held that “[i]n order to characterize the place at which the impugned conduct occurs, it is necessary to consider the manner in which the place is expected to be used. If a place is one where nudity may normally be expected (in a shower or toilet, for example) the characterization is easy. If, as in the case at bar, there is inconsistent use and the observation is not continuous and protracted, the expected use at the time of observation or recording must be addressed. The relevant inquiry, in my opinion, is whether the place can accurately be characterized, at the time of the use in question, as a place in which a person can reasonably be expected to be nude. If so, then the section applies even if there is no nudity…But if there was no nudity, and nudity could not reasonably be expected during the course of the relevant use, then it is a different matter” (at paragraph 40).
The Majority concluded that “[w]hile it was open to the trial judge to find nudity was expected in the dressing room in which the offences were found to have occurred, the conflicts in the evidence regarding whether nudity was expected at the time the photos were taken were not addressed. In my opinion, a conviction cannot be founded solely upon evidence that at some time nudity was expected in the dressing rooms in question. For that reason, I would allow the appeal, set aside the conviction, and order a new trial” (at paragraph 55).
Justice Dickson dissented. She would have upheld the conviction. Justice Dickson held that for section 162(1)(a), “the relevant inquiry” is “whether the place in which the impugned conduct occurred is a place in which a person can reasonably be expected to be nude, exposing intimate body parts or engaging in sexual activity, regardless of the expected use of that place specifically when the conduct occurred” (at paragraph 56).
Justice Dickson disagreed with the majority’s conclusion that “the accurate characterization of ‘a place’ under s. 162(1)(a) involves a temporal use component if the place in question is predictably used for multiple purposes. With the possible exception of a shower, almost all places are predictably used for more than one purpose. I do not accept that, as a result, ‘a place’ can only be characterized accurately by its expected use at a specific time under s. 162(1)(a). Rather, in my view, a multi purpose place may be characterized accurately as a place in which a person can reasonably be expected to be in a state listed in s. 162(1)(a) even if its predictable use when the impugned conduct occurred did not involve nudity, exposure of intimate body parts or sexual activity. As I see it, the words of the provision and the judgment in Jarvis support the view that the use being made of a place when impugned conduct occurs is simply one circumstance for consideration when the Court determines whether the subject was then in circumstances that gave rise to a reasonable expectation of privacy and, if so, the nature and extent of that expectation” (at paragraph 57).