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Criminal - Voyeurism. R. v. Downes
In R. v. Downes (SCC, 2023) the Supreme Court of Canada reviews the offence and legislative purpose of the criminal charge of voyeurism:(2) This Court’s Decision in Jarvis and the Purposes of Section 162(1)
[26] This Court considered s. 162(1) for the first time in Jarvis. In that case, this Court ruled that a high school teacher who used a camera concealed inside a pen to surreptitiously record female students at the school by focussing on their faces, upper bodies, and breasts, committed the offence of voyeurism under s. 162(1)(c) (“the observation or recording is done for a sexual purpose”). The elements of the offence were established because the students were surreptitiously recorded in circumstances that gave rise to a reasonable expectation of privacy and the recordings were made for a sexual purpose.
[27] In Jarvis, Wagner C.J. for the majority noted that the voyeurism offence was enacted as part of Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, 1st Sess., 38th Parl., 2004-2005 (assented to July 20, 2005), the overarching purpose of which was to “protect children and other vulnerable persons from sexual exploitation, violence, abuse and neglect” (para. 51). Most sex crimes, including voyeurism, are committed by men, while the victims are usually women and children (see Department of Justice, Voyeurism as a Criminal Offence: A Consultation Paper (2002), at p. 4; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 65, citing R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 2; J. Bailey, “Implicitly Feminist?: The Supreme Court of Canada’s Decision in R v Jarvis” (2020), 32 C.J.W.L. 196, at pp. 200-201).
[28] Parliament’s object in enacting s. 162(1), Wagner C.J. found in Jarvis, was “to protect individuals’ privacy and sexual integrity, particularly from new threats posed by the abuse of evolving technologies” (para. 48). The new voyeurism offence “was motivated by concerns about the potential for rapidly evolving technology to be abused for the secret viewing or recording of individuals for sexual purposes and in ways that involve a serious breach of privacy” (para. 49, citing Department of Justice, at p. 1). Voyeurism is thus both a sexual and a privacy-based offence. Section 162(1) is intended to deal with both these related harms: behaviour that violates sexual integrity, and behaviour that breaches privacy (paras. 51-52). Rowe J., concurring in the result in Jarvis, agreed with Wagner C.J. that the purpose and object of s. 162(1) is “to protect well-established interests of privacy, autonomy and sexual integrity of all individuals, in light of threats posed by new technologies to encroach upon them” (para. 113).
[29] Parliament’s objectives of protecting against the related harms of violations of privacy and sexual integrity are apparent in the wording and structure of s. 162(1). I will consider each objective in turn.
[30] Parliament’s objective of protecting privacy appears in the opening words of s. 162(1), which state that it is an offence for someone to surreptitiously observe or record a person “in circumstances that give rise to a reasonable expectation of privacy” if any of paras. (a), (b), or (c) applies. In Jarvis, Wagner C.J. explained that the circumstances that give rise to a reasonable expectation of privacy under s. 162(1) are “circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred” (para. 28). A court should consider the entire context in which the observation or recording occurred, including the following non-exhaustive factors: (1) the location of the person when they were observed or recorded; (2) the nature of the impugned conduct (i.e., whether it consisted of observation or recording); (3) the awareness or consent of the person who was observed or recorded; (4) the manner in which the observation or recording was made; (5) the subject matter or content of the observation or recording; (6) any rules, regulations, or policies that governed the observation or recording; (7) the relationship between the parties; (8) the purpose for which the observation or recording was made; and (9) the personal attributes of the person who was observed or recorded (paras. 5 and 28-29).
[31] Parliament’s objective of protecting sexual integrity is also apparent in each of paras. (a), (b), and (c) of s. 162(1).
[32] Section 162(1)(a) protects the sexual integrity of persons in specific places: when “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”. I agree with the observations of Juriansz J.A. in R. v. Trinchi, 2019 ONCA 356, 145 O.R. (3d) 721, at para. 8, that para. (a) “does not require the person to be actually nude, exposing intimate parts of his or her body, or engaged in sexual activity”; it suffices if they are in a place where a person may “reasonably be expected to be in such a state, such as a changing room, toilet, shower stall, or bedroom” (see also Jarvis, at para. 46, per Wagner C.J.; M. Manning and P. Sankoff, Manning, Mewett & Sankoff: Criminal Law (5th ed. 2015), at ¶21.245). I also agree that, unlike para. (c), para. (a) “does not require the accused to act for a sexual purpose. It would apply to an accused who hoped to profit by posting recordings on the Internet” (Trinchi, at para. 8; see also Jarvis, at para. 32, per Wagner C.J., and at paras. 143-44, per Rowe J.).
[33] Section 162(1)(b) protects the sexual integrity of persons engaged in specific activities: when “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”. I again agree with Juriansz J.A. that, under para. (b), the “nature of the location does not matter, but the accused must have the purpose of observing or recording the subject in such a state or engaged in such an activity” (Trinchi, at para. 9; see also Jarvis, at paras. 46-47 and 52, per Wagner C.J.). In addition, the Crown need not prove that the accused acted for a sexual purpose: “[p]aragraph (b), like para. (a), would apply to an accused whose purpose was commercial” (Trinchi, at para. 9; see also Jarvis, at para. 32, per Wagner C.J., and at para. 143, per Rowe J.).
[34] Section 162(1)(c) protects the sexual integrity of persons when the observation or recording is done for a sexual purpose. This provision applies “whether the subject is clothed or unclothed — no matter what she or he is doing” (Trinchi, at para. 10). In Jarvis, for example, the accused teacher was convicted under s. 162(1)(c), even though the students surreptitiously video recorded were fully clothed and going about common school activities. Paragraph (c) applies regardless of the location of the targeted subject (Jarvis, at paras. 46-47 and 52, per Wagner C.J., and at para. 129, per Rowe J.).
[35] I hasten to add that the opening words of s. 162(1) also protect sexual integrity, and each of paras. (a), (b), and (c) of s. 162(1) also protect privacy. Parliament’s two objectives of protecting against the related harms of violations of sexual integrity and privacy appear throughout s. 162(1). For example, in considering whether a person “is in circumstances that give rise to a reasonable expectation of privacy” in the opening words of s. 162(1), a court must consider whether a person “would reasonably expect not to be the subject of the type of observation or recording that in fact occurred”, based on the non-exhaustive list of considerations identified in Jarvis (paras. 5 and 28-29). These considerations include factors relating to sexual integrity, such as whether the subject matter of the observation or recording includes intimate parts of a person’s body (para. 29(5)), and whether the recording is for a sexual purpose (paras. 29(8) and 31-32). Similarly, paras. (a), (b), and (c) of s. 162(1) protect privacy from surreptitious observations or recordings in circumstances where sexual integrity is engaged.
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