Professor Jane Bailey Appears for CIPPIC in Voyereurism Case, R v Downes

Professor Jane Bailey offered submissions on behalf of CIPPIC at the hearing of R v Downes, an important voyeurism case. This issue before the Court involved the interpretation of the "place" provisions of the Criminal Code's prohibitions against voyeurism [1]. These provisions protect Canadians against surreptitious observation and recording when we have a reasonable expectation of privacy and are in “a place in which a person can reasonably be expected to be nude...”.

The case involved a coach of a minor sports team who had surreptitiously taken photographs in a sports facility changeroom of pre-teens wearing only their underwear. The British Columbia Court of Appeal had in a 2-1 decision [2] overturned the trial conviction, interpreting the “place” prohibition as requiring nudity at the time of the offence. The dissent and trial judge had interpreted the “place” prohibition in its traditional “safe space” sense, with the expectation of nudity qualifying the place as one to which the expectation of safety attached, regardless of whether anyone could be expected to be nude at the time of the offence.  

CIPPIC’s intervention [3] urged on the Court this latter interpretation: the “space” element of the criminal voyeurism prohibition was intended to create bright line zones of safety. We offered three supporting arguments:

• A changeroom is a quintessential example of the type of place contemplated by the “space” provision.
• Demarcating changerooms as a bright line zone of safety is consistent with Parliament’s stated intentions and with the Court’s equality-focused sexual integrity approach to sexual violence.
• The BCCA majority’s time-constrained approach narrows protection of the sexual and bodily integrity of athletes, with disproportio nately negative implications for members of already marginalized equality-seeking communities.

We await the Court’s decision.

Resources

• CIPPIC’s Factum [3]
• SCC Docket [4] in R. v. Downes