Date: March 10, 2023

On appeal from British Columbia

Criminal law — Voyeurism — Elements of offence — Place in which a person can reasonably be expected to be nude — Accused convicted of voyeurism for surreptitiously photographing two adolescent boys in their underwear in hockey arena dressing rooms — Trial judge finding that Crown proved that boys were in place in which a person can reasonably be expected to be nude — Court of Appeal setting aside convictions and ordering new trial on basis that trial judge failed to address conflicts in evidence about whether nudity could reasonably be expected in dressing rooms at specific time photos were taken — Whether element of offence that person surreptitiously observed or recorded be in place in which a person can reasonably be expected to be nude has implicit temporal component — Criminal Code, R.S.C. 1985, c. C‑46, s. 162(1)(a).

Summary

The accused was convicted of 2 counts of voyeurism for surreptitiously taking 38 photos of 2 boys aged between 12 and 14 years old in their underwear in hockey arena dressing rooms. The accused was the boys’ hockey coach. The trial judge held that the Crown had proved the four elements of the voyeurism offence under s. 162(1)(a) of the Criminal Code beyond a reasonable doubt: the accused took the photos of the boys (1) intentionally; (2) surreptitiously; (3) in circumstances that gave rise to a reasonable expectation of privacy; and (4) in a place in which a person can reasonably be expected to be nude. Specifically, regarding the fourth element, she effectively interpreted s. 162(1)(a) as having no implicit temporal component, stating that s. 162(1)(a) focuses on the nature of the place in which an observation or recording is made, but does not require that the person who is the subject of the observation or recording was, or ever had been, nude, or that the person could reasonably be expected to be nude. She found that individuals of various ages change their underwear or shower in dressing rooms, and thus can reasonably be expected to be nude in them, and that this finding was sufficient for the purposes of s. 162(1)(a).

A majority of the Court of Appeal allowed the accused’s appeal, set aside the convictions, and ordered a new trial. It concluded that the trial judge had failed to consider whether nudity was reasonably expected at the time when the offences allegedly occurred. It stated that s. 162(1)(a) was intended to apply to persons who expect to observe or record nudity or sexual activity. The dissenting judge would have dismissed the appeal. She was of the view that s. 162(1)(a) contains no implicit temporal component; the provision instead focuses on the “place”, which, under s. 162(1)(a), is a place in which a person can reasonably be expected to be nude, regardless of the expected use of that place specifically when the conduct occurred.

Held: The appeal should be allowed and the convictions restored.

Complete reasons available at: R. v. Downes, 2023 SCC 6

Further information – Case in Brief: R. v. Downes, 2023 SCC 6

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