Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Downes, 2023 SCC 6, March 10, 2023, the accused was convicted of the offence of voyeurism, contrary to section 162(1)(a) of the Criminal Code. He had surreptitiously taken photographs of boys aged between 12 and 14 years old in their underwear in hockey arena dressing rooms.  On appeal, a majority of the British Columbia Court of Appeal set aside the convictions, holding that section 162(1)(a) was intended to apply to persons who expect to observe or record nudity or sexual activity.

The Crown appealed to the Supreme Court of Canada. The Supreme Court indicated that the “question in this appeal is whether the “place” referred to in s. 162(1)(a) is qualified by an implicit temporal component; specifically, must the person be in a place in which a person can reasonably be expected to be nude at the specific time when the person is surreptitiously observed or recorded?” (at paragraph 1).

The appeal was allowed and the convictions restored. The Supreme Court concluded that section 162(1)(a) “has no implicit temporal component” (at paragraph 5):

In my view, properly interpreted based on its text, context, and purpose, s. 162(1)(a) has no implicit temporal component. The text of s. 162(1)(a) lacks language suggesting that Parliament intended the “place” to be evaluated at the specific time when the observation or recording was made. Further, as this Court observed in Jarvis, Parliament’s purposes in enacting the voyeurism offence were to protect individuals’ privacy and sexual integrity. Those purposes are promoted by interpreting s. 162(1)(a) without an implicit temporal component, and would be detracted from by reading in such a component. In effect, s. 162(1)(a) designates places such as bedrooms, bathrooms, and dressing rooms as “safe places” where people should be free from intrusions onto their privacy and sexual integrity, whether or not a person in the place could reasonably be expected to be nude or engaged in sexual activity at the specific time the person is surreptitiously observed or recorded. Finally, I would decline to address the constitutional issue because this is not an appropriate case for this Court to exceptionally exercise its discretion to decide such an issue for the first time on appeal. I would therefore allow the appeal and restore the convictions.