R. v. Downes and CIPPIC’s Impact on Technology-Facilitated Voyeurism Law

Legal Issue and Outcome  

In R. v. Downes, 2023 SCC 6, CIPPIC intervened before the Supreme Court of Canada in a case about the meaning of the criminal offence of voyeurism under section 162(1)(a) of the Criminal Code. The case concerned the meaning of the prohibition against surreptitiously observing or recording a person “in a place in which a person can reasonably be expected to be nude” or otherwise exposing intimate body parts or engaged in sexual activity.

Background 

Randy William Downes, a hockey coach in British Columbia, as charged with two counts of voyeurism for secretly photographing two boys aged 12 to 14 in arena dressing rooms where they were in their underwear.  

Lower Court Decisions 

The trial judge convicted Mr. Downes. The majority decision of the British Columbia Court of Appeal set aside the convictions on the basis that the Crown needed to prove that nudity was reasonably expected at the specific time the photos were taken.  

Issue 

The appeal turned on the meaning of “place” in the voyeurism offense. Did Parliament intend the law to protect the “place”, recognizing that there are some spaces that we can expect the law to protect with a bright line zoneof safety and privacy? Or, as the majority in the Court of Appeal reasoned, does the law include an implicit time limit, so the Crown must prove that nudity was reasonably expected at the moment of the recording?  

CIPPIC’s Intervention 

CIPPIC intervened in support of the Crown. CIPPIC focused on the privacy, dignity, and sexual integrity harms that voyeurism and technology-facilitated recording can cause. CIPPIC urged the Court to adopt an equality-enhancing bright line approach for change rooms and to reject the Court of Appeal majority’s temporally constrained interpretation, which CIPPIC argued would narrow protection and disproportionately undermine the sexual integrity and equality of those most often targeted by voyeurism, including women and children. 

Decision at the Supreme Court 

The Supreme Court allowed the Crown’s appeal and restored the convictions. Justice Jamal, writing for the Court, held that section 162(1)(a) has no temporal component. The Crown does not need to prove that nudity was reasonably expected at the specific time of recording. It is enough that the place where the recording occurred is one where a person could reasonably expect to be nude, such as a changing room. The Court held that this interpretation better reflects Parliament’s purpose in protecting privacy and sexual integrity. 

The Court’s decision is consistent with CIPPIC’s submissions both in its result (adopting a “safe places” interpretation and rejecting a time-based interpretation) and its reasoning that the law protects sexual intergrity. At paragraph 47, Justice Jamal quoted CIPPIC’s factum: 

Surreptitious observation or recording of a person where there is a reasonable expectation of privacy, and which occurs in a “safe place” under s. 162(1)(a), violates or poses a risk of violating sexual integrity, even if nudity is not reasonably expected at the specific time of the observation or recording. An observation or recording in such a quintessentially private and “safe place” violates trust and can result in the person’s humiliation, objectification, exploitation, shame, or loss of selfesteem (Craig, at p. 68). It can also cause emotional and psychological harm, even if the person is not observed or recorded when nude. As the intervener, the SamuelsonGlushko Canadian Internet Policy and Public Interest Clinic, observes: “Such violations of trust objectify those targeted by reducing them to body parts, creating images that in a digital environment can be easily replicated, cropped and manipulated in ways and for uses that disregard their right to control their own bodies. These violating images hinder subjects from developing their sexuality as they see fit, while also potentially exposing them to the shame and humiliation that often results from instantaneous and widespread dissemination”.  

The Court also cited uOttawa Professor Jane Baily in its decision. 

Supreme Court Decision  

R. v. Downes, 2023 SCC 6  

CIPPIC’s Submissions 

CIPPIC's Factum

Director David Fewer and Professor Jane Bailey acted for CIPPIC. Professor Suzanne Dunne and Moira Aikenhead assisted with the preparation of CIPPIC’s materials.