Supreme Court of Canada

Appeal Heard: October 13, 2022 Judgment Rendered: March 10, 2023 Docket: 40045

Parties

His Majesty The King — Appellant

v.

Randy William Downes — Respondent

— and —

Attorney General of Ontario, Attorney General of Alberta and Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic — Interveners

Indexed as: R. v. Downes

2023 SCC 6

File No.: 40045.

2022: October 13; 2023: March 10.

Present: Karakatsanis, Brown*, Rowe, Martin, Kasirer, Jamal and O'Bonsawin JJ.

* Brown J. did not participate in the final disposition of the judgment.

on appeal from the court of appeal for british columbia

Reasons for Judgment

Reasons for Judgment: (paras. 1 to 59)

Jamal J. (Karakatsanis, Rowe, Martin, Kasirer and O'Bonsawin JJ. concurring)

Headnote

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).

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.

Properly interpreted based on its text, context, and purpose, s. 162(1)(a) of the Criminal Code has no implicit temporal component. Accordingly, the Crown need not establish that a person could reasonably be expected to be nude in the place at the specific time when the photos were taken. As a result, the trial judge appropriately convicted the accused of voyeurism under s. 162(1)(a).

Parliament's purposes in enacting the voyeurism offence in s. 162(1) were to protect individuals' privacy and sexual integrity. Parliament's objective of protecting privacy appears in the opening words of s. 162(1), which refer to circumstances that give rise to a reasonable expectation of privacy. These 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. As for Parliament's objective of protecting sexual integrity, it is apparent in each of paras. (a), (b), and (c) of s. 162(1). Section 162(1)(a) protects the sexual integrity of persons in specific places. It 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. In addition, para. (a) does not require the accused to act for a sexual purpose. 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. 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. Similarly to para. (a), the Crown need not prove that the accused acted for a sexual purpose. Section 162(1)(c) protects the sexual integrity of persons when the observation or recording is done for a sexual purpose. It applies whether the subject is clothed or unclothed — no matter what they are doing, and regardless of the location of the targeted subject. 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.

The question as to whether the "place" referred to in s. 162(1)(a) is qualified by an implicit temporal component is one of statutory interpretation. The words in s. 162(1)(a) must be considered in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Section 162(1)(a) must be interpreted according to a textual, contextual, and purposive analysis to find a meaning that is harmonious with the Act as a whole. The text of s. 162(1)(a) refers to a test for the "place" that is objective in two respects. First, s. 162(1)(a) uses the definite article "the person" when referring to the subject of the observation or recording, but uses the indefinite article "a person" when referring to the reasonably expected uses of the place. This means that the person being surreptitiously observed or recorded must be in a place in which a person can reasonably be expected to be nude. Second, s. 162(1)(a) asks whether a person can reasonably be expected to be nude in the place, and not whether the accused subjectively expected them to be nude.

The use of an objective test in s. 162(1)(a) is not determinative of whether the provision contains a temporal component, however, because Parliament still might have intended that the objective evaluation be made at a specific time. The key textual point is the lack of express language in s. 162(1)(a) suggesting that Parliament intended the "place" to be evaluated at the specific time when the observation or recording was made. Had Parliament intended to insist on such a temporal component, it could have done so expressly by referring to the observation or recording being made in a place in which a person can then reasonably be expected to be nude, or being made in a place in which a person would reasonably be expected to be nude at the time of the observation or recording.

The statutory context and purpose of s. 162(1)(a) also suggest that Parliament did not intend the provision to contain a temporal component. Parliament's purposes of protecting privacy and sexual integrity are promoted by interpreting s. 162(1)(a) as a location‑based offence without a temporal component. Rather than providing a specific list of places protected under s. 162(1)(a), Parliament chose to define the protected places in a principled and normative way. Section 162(1)(a) stipulates a rule that normatively identifies a class of quintessentially "safe places", such as bedrooms, bathrooms, and dressing rooms, in which people should be entitled to not be non‑consensually observed or visually recorded, whether or not they or another person in the place are reasonably expected to be nude at the time of the observation or recording. An observation or recording in such a quintessentially "safe place" violates trust and can result in the person's humiliation, objectification, exploitation, shame, or loss of self‑esteem, and can cause emotional and psychological harm, even if the person is not observed or recorded when nude. In this way, s. 162(1)(a) protects privacy, as well as sexual integrity as it is understood today.

Cases Cited

Considered: R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488; referred to: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021; R. v. Trinchi, 2019 ONCA 356, 145 O.R. (3d) 721; R. v. Keegstra, [1995] 2 S.C.R. 381; Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; MacKay v. Manitoba, [1989] 2 S.C.R. 357; R. v. Wookey, 2016 ONCA 611, 363 C.R.R. (2d) 177.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 7.

Criminal Code, R.S.C. 1985, c. C‑46, Part V, ss. 162, (2) "visual recording", 162.1(1), (2) "intimate image", 693(1)(a).

Supreme Court Act, R.S.C. 1985, c. S‑26, s. 40.

Authors Cited

Bailey, Jane. "Implicitly Feminist?: The Supreme Court of Canada's Decision in R v Jarvis" (2020), 32 C.J.W.L. 196.

Canada. Department of Justice. Voyeurism as a Criminal Offence: A Consultation Paper. Ottawa, 2002.

Craig, Elaine. Troubling Sex: Towards a Legal Theory of Sexual Integrity. Vancouver/Toronto: UBC Press, 2012.

Manning, Morris, and Peter Sankoff. Manning, Mewett & Sankoff: Criminal Law, 5th ed. Markham, Ont.: LexisNexis, 2015.

Appeal

APPEAL from a judgment of the British Columbia Court of Appeal (Willcock, Dickson and Grauer JJ.A.), 2022 BCCA 8, 409 C.C.C. (3d) 464, 77 C.R. (7th) 355, [2022] B.C.J. No. 17 (QL), 2022 CarswellBC 25 (WL), setting aside the convictions for voyeurism entered by MacNaughton J., 2019 BCSC 992, [2019] B.C.J. No. 1134 (QL), 2019 CarswellBC 1751 (WL), and ordering a new trial. Appeal allowed.

Counsel

Micah Rankin and Rome Carot, for the appellant.

Donald J. Sorochan, K.C., and Faisal Al‑Alamy, for the respondent.

Matthew Asma and Lisa Henderson, for the intervener the Attorney General of Ontario.

Danielle E. Green, for the intervener the Attorney General of Alberta.

Jane Bailey and David Fewer, for the intervener the Samuelson‑Glushko Canadian Internet Policy and Public Interest Clinic.

Reasons for Judgment

The judgment of the Court was delivered by

Jamal J. —

I. Overview

[ 1 ] This appeal concerns the scope of the voyeurism offence in s. 162(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. Section 162(1)(a) provides that it is an offence to surreptitiously observe or make a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if 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". 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?

[ 2 ] On the facts of this case, the issue is whether a hockey coach, the respondent, Randy William Downes, committed the offence of voyeurism under s. 162(1)(a) by surreptitiously photographing 2 boys aged between 12 and 14 years old in their underwear in hockey arena dressing rooms, even if a person could not reasonably be expected to be nude at the specific time when the photos were taken. There was conflicting evidence at trial on whether boys at this age shower or are nude in dressing rooms.

[ 3 ] The trial judge relied on this Court's decision in R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, on the scope of the voyeurism offence. She effectively interpreted s. 162(1)(a) as having no implicit temporal component, and convicted Mr. Downes of two counts of voyeurism. A majority of the Court of Appeal for British Columbia (per Willcock J.A., Grauer J.A. concurring) disagreed with the trial judge's interpretation, set aside the convictions, and ordered a new trial on the basis that the trial judge had failed to address conflicts in the evidence about whether nudity could reasonably be expected when the photos were taken. In dissent, Dickson J.A. agreed with the trial judge and would have dismissed the appeal.

[ 4 ] The Crown now appeals to this Court as of right on the question of law as to whether s. 162(1)(a) has an implicit temporal component. In addition, Mr. Downes submits that if s. 162(1)(a) is interpreted as lacking a temporal component, then the provision is unconstitutionally overbroad contrary to s. 7 of the Canadian Charter of Rights and Freedoms. Mr. Downes did not raise this constitutional issue at trial. He raised it for the first time before the Court of Appeal, but the court did not address it.

[ 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.

II. Background

[ 6 ] Mr. Downes was convicted of 2 counts of voyeurism under s. 162(1)(a) of the Criminal Code for surreptitiously taking 38 photos of 2 adolescent male hockey players, T.R. and G.C., in hockey dressing rooms. Mr. Downes was the boys' hockey coach. He also ran a sports photography business from his home.

[ 7 ] In March 2016, Canada Border Services Agency ("CBSA") officers searched Mr. Downes' electronic devices at the border when he returned to Canada from the United States after a brief shopping trip and found thousands of photos of children engaged in sporting activities. Some of the children were in locker rooms. Mr. Downes explained to the CBSA that the photos were from his sports photography business. Although none of the photos involved nudity or child pornography, the CBSA alerted the RCMP because of a concern that Mr. Downes might have child pornography on his home computer.

[ 8 ] In April 2016, the RCMP obtained and executed a warrant to search Mr. Downes' home and electronic devices. They found the photos of T.R. and G.C. that led to the voyeurism charges. The photos of T.R. were taken when he was 13 or 14 years old and show him sitting on a bench wearing only his underwear, revealing his crotch area and bare torso, or putting on street clothes after a hockey practice. The photos of G.C. were taken when he was about 12 years old and show him wearing only his underwear, wearing a shirt and underwear, or fully clothed; in some photos, G.C. is standing clothed at a sink in the washroom area of a dressing room. Mr. Downes told the RCMP that he liked young boys but that it was "not a sexual thing" (A.R., vol. III, at p. 207).

[ 9 ] Mr. Downes took the photos of T.R. and G.C. using his iPhone. He deleted some photos but emailed others to himself, downloaded them onto a computer, and copied them onto a USB stick. He also cropped some photos to focus on G.C.

[ 10 ] None of T.R., G.C., or G.C.'s mother knew that Mr. Downes had taken the photos. The trial judge found that Mr. Downes likely knew that a hockey league rule prohibited the use of cell phones in dressing rooms to prevent photos being taken of children.

[ 11 ] At trial, both parties led evidence about whether a person could reasonably be expected to be nude in a hockey dressing room. The evidence centred on whether boys would remove their underwear or shower in dressing rooms. T.R. and G.C. testified that they did not shower in dressing rooms, but that some of their teammates did. One of Mr. Downes' former hockey players testified that he would change his underwear in dressing rooms, and although he did not shower, other players occasionally did. Another of Mr. Downes' former hockey players testified that from ages 11 to 14 or 15 he never got completely naked or showered in dressing rooms and never saw others do so. Three hockey coaches (two of whom had coached with Mr. Downes) testified that boys of T.R. and G.C.'s ages rarely are naked or shower in dressing rooms; a former manager of one of Mr. Downes' hockey teams testified to the same effect. One hockey coach explained that this was because boys of T.R. and G.C.'s ages are too self-conscious about their bodies. But it was common ground that children a little older than T.R. and G.C. and adults often are naked or shower in dressing rooms.

III. Decisions Below

A. Supreme Court of British Columbia, 2019 BCSC 992 (MacNaughton J.)

[ 12 ] The trial judge convicted Mr. Downes on both voyeurism charges. She held that the Crown had proved the four elements of voyeurism under s. 162(1)(a) beyond a reasonable doubt: Mr. Downes took the photos of T.R. and G.C. (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.

[ 13 ] The trial judge applied the contextual factors identified by this Court in Jarvis and found that T.R. and G.C. were in circumstances that gave rise to a reasonable expectation of privacy. She noted that T.R. and G.C. were in a private or semi-private place set aside for dressing and undressing; their parents entrusted them to Mr. Downes, an experienced coach; and they did not expect to be photographed by their coach through the surreptitious use of a cell phone for non-instructional purposes. The trial judge ruled that although T.R. and G.C. would expect to be observed by others in the dressing room, they would not expect to be photographed, nor would they expect Mr. Downes to email photos of them to himself and to keep them long after he stopped having contact with them.

[ 14 ] At trial, Mr. Downes did not expressly argue that s. 162(1)(a) contains an implicit temporal component. Instead, he argued that the Crown had to prove that T.R. and G.C. were in a place in which they could reasonably be expected to be nude. He argued that the evidence showed that neither T.R. nor G.C. had any expectation of being nude in the dressing rooms in which they were photographed. The trial judge rejected that argument. She stated 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. It is sufficient under s. 162(1)(a) that a person (not "the person") could 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. In the trial judge's view, homes, bathrooms, and changing rooms are traditionally private or quasi-private places in which a person can reasonably expect privacy, and in which they can reasonably be expected to be nude or partially nude. The focus in s. 162(1)(a) on the place in which an observation or recording is made recognizes that there are private or semi‑private spaces in which a person should be protected from being observed or recorded.

[ 15 ] The trial judge 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. She concluded that this finding was sufficient for the purposes of s. 162(1)(a). As a result, the dressing rooms where Mr. Downes photographed T.R. and G.C. were places in which a person can reasonably be expected to be nude.

B. Court of Appeal for British Columbia, 2022 BCCA 8, 409 C.C.C. (3d) 464 (Willcock and Grauer JJ.A., Dickson J.A. Dissenting)

[ 16 ] A majority of the Court of Appeal for British Columbia allowed Mr. Downes' appeal, set aside the convictions, and ordered a new trial. The majority concluded that the trial judge had failed to consider whether nudity was reasonably expected "at the time" when the offences allegedly occurred (paras. 40 and 55). The majority stated that s. 162(1)(a) was intended to apply to persons who expect to observe or record nudity or sexual activity. In its view, s. 162(1)(a) does not criminalize an invasion of privacy alone. The majority noted that although Mr. Downes' conduct involved a breach of trust and an invasion of privacy, that did not necessarily make it conduct that s. 162(1)(a) criminalized as a sexual offence.

[ 17 ] The majority ruled that although it was open to the trial judge to find that nudity was reasonably expected in the dressing rooms in which T.R. and G.C. were photographed, she had failed to address conflicts in the evidence on whether nudity was expected at the time the photos were taken. The majority therefore ordered a new trial.

[ 18 ] Dickson J.A. dissented. In her view, s. 162(1)(a) contains no implicit temporal component; the provision instead focuses on the "place". The relevant place under s. 162(1)(a) is "a place in which a person can reasonably be expected to be nude, exposing intimate body parts or engaging in sexual activity, regardless of the expected use of that place specifically when the conduct occurred" (para. 56 (emphasis in original)). She stated that when a person is in "a manifestly private place such as a bathroom or dressing room they are generally entitled to expect that they will not be surreptitiously observed or recorded there" (para. 92). In her view, Parliament intended to criminalize surreptitious observation or recording of persons in such places.

[ 19 ] Dickson J.A. concluded that Mr. Downes criminally invaded the personal privacy and sexual integrity of T.R. and G.C. by surreptitiously photographing them in their underwear in the dressing rooms, irrespective of whether nudity could be expected at that specific time. His conduct was "seriously exploitative and personally invasive", and was "appropriately criminalized as a form of sexual offence" (para. 97).

IV. Issues

[ 20 ] This appeal raises two issues:

(1) Does s. 162(1)(a) of the Criminal Code have an implicit temporal component?

(2) If s. 162(1)(a) does not have an implicit temporal component, is the provision unconstitutionally overbroad contrary to s. 7 of the Charter?

V. Analysis

A. Does Section 162(1)(a) of the Criminal Code Have an Implicit Temporal Component?

(1) The Voyeurism Offence

[ 21 ] Parliament enacted the voyeurism offence, s. 162(1) of the Criminal Code, in 2005. Section 162(1) provides:

Voyeurism

162 (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(a) 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;

(b) 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; or

(c) the observation or recording is done for a sexual purpose.

[ 22 ] Mr. Downes was charged with voyeurism under s. 162(1)(a). The offence is committed when a person surreptitiously observes or makes a visual recording of another person who is in circumstances that give rise to a reasonable expectation of privacy, if "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". The disputed question is whether the highlighted phrase — "a place in which a person can reasonably be expected to be nude" — has an implicit temporal component: must the Crown prove that nudity was reasonably expected in the place at the specific time of the surreptitious observation or recording?

[ 23 ] It is not disputed that the photos taken by Mr. Downes are "visual recordings". It is also no longer disputed that Mr. Downes took the photos surreptitiously and in circumstances that gave rise to a reasonable expectation of privacy. The only disputed element is the fourth one: whether the photos were taken in a place in which a person can reasonably be expected to be nude.

[ 24 ] This question of statutory interpretation requires this Court to consider the words in s. 162(1)(a) "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. "[T]he words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10.

[ 25 ] In what follows, I will first review this Court's decision in Jarvis and the purposes of the voyeurism offence. I will then interpret s. 162(1)(a) based on its text, context, and purpose.

(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 in the classroom had committed the offence of voyeurism under s. 162(1)(c) — observing or recording 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, S.C. 2005, c. 32. The then‑Minister of Justice explained in his second reading speech to Parliament that the purpose of the new offence was to recognize that "privacy should be protected, particularly in locations where persons would reasonably have a high expectation of privacy, such as homes, bathrooms, dressing rooms and bedrooms" and to recognize "a general criminal law principle against the invasion of privacy": Jarvis, at para. 28.

[ 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. 28. These were the two rationales Parliament pursued.

[ 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, and how each of paras. (a), (b), and (c) of s. 162(1) reflects both objectives.

[ 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". As this Court stated in Jarvis, at para. 37, these 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.

[ 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". Section 162(1)(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. In addition, para. (a) does not require the accused to act for a sexual purpose.

[ 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". 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. Similarly to para. (a), the Crown need not prove that the accused acted for a sexual purpose.

[ 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 they are doing, and regardless of the location of the targeted subject": Jarvis, at para. 58.

[ 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 privacy and sexual integrity are intertwined throughout s. 162(1).

[ 36 ] I now turn to consider whether s. 162(1)(a) has an implicit temporal component; in other words, whether the Crown must prove that nudity was reasonably expected at the specific time when the surreptitious observation or recording was made.

(3) The Interpretation of Section 162(1)(a)

(a) Positions of the Parties

[ 37 ] The Crown submits that the majority of the Court of Appeal erred by interpreting s. 162(1)(a) as requiring proof that nudity is reasonably expected in the place at the specific time when a surreptitious observation or recording is made. The Crown argues that s. 162(1)(a) is designed to protect persons from surreptitious observation or recording in quintessential "safe places" — such as changing rooms, bedrooms, bathrooms, and toilets — that are normatively recognized as places for nudity. The Crown submits that adding an implicit temporal component would create arbitrary distinctions — for instance, depending on whether a particular group of people who use a locker room are too self-conscious to shower naked. Mr. Downes' counsel confirmed at the hearing before this Court that such a temporal component would have these potentially anomalous consequences.

[ 38 ] Mr. Downes argues that s. 162(1)(a) requires the Crown to prove that nudity is reasonably expected at the specific time and place at which a surreptitious recording is made. He claims that a temporal component is necessary to avoid the provision becoming unconstitutionally overbroad. Without such a limitation, he says, the provision could apply in circumstances where surreptitious photography does not violate privacy or sexual integrity.

[ 39 ] In my view, when s. 162(1)(a) is properly interpreted based on its text, context, and purpose, the provision does not have an implicit temporal component.

(b) Text

[ 40 ] The text of s. 162(1)(a) refers to an objective test for the "place" without regard to time. Although not determinative, the text of s. 162(1)(a) thus suggests that the provision lacks a temporal component.

[ 41 ] The test in s. 162(1)(a) for the "place" is objective in two respects. First, s. 162(1)(a) uses the definite article "the person" ("la personne") when referring to the subject of the observation or recording, but uses the indefinite article "a person" ("une personne") when referring to the reasonably expected uses of the place. This means that it need not be shown that the person actually being observed or recorded was expected to be nude, but rather that a person — any person — can be reasonably expected to be nude in that place. Second, s. 162(1)(a) asks whether a person can reasonably be expected to be nude in the place, and not whether the accused subjectively expected them to be nude.

[ 42 ] The key textual point is the lack of express language in s. 162(1)(a) suggesting that Parliament intended the "place" to be evaluated at the specific time when the observation or recording was made. Had Parliament intended to insist on such a temporal component, it could have done so expressly by referring to the observation or recording being made in a place in which a person can then reasonably be expected to be nude, or being made in a place in which a person would reasonably be expected to be nude at the time of the observation or recording. Parliament did not do so.

[ 43 ] Thus, while not determinative, the lack of express temporal language in s. 162(1)(a)'s objective test for the "place" suggests that Parliament did not intend the provision to contain a temporal component.

(c) Statutory Context and Purpose

[ 44 ] The statutory context and purpose of s. 162(1)(a) also suggest that Parliament did not intend the provision to contain a temporal component. Interpreting s. 162(1)(a) as prohibiting surreptitious observation or recording of persons in specific "safe places", without a temporal component, is consistent with Parliament's purposes of protecting privacy and sexual integrity. By contrast, interpreting s. 162(1)(a) as including a temporal component detracts from Parliament's purposes.

[ 45 ] Parliament's purposes of protecting privacy and sexual integrity are promoted by interpreting s. 162(1)(a) as a location-based offence without a temporal component. As noted by the intervener, the Samuelson‑Glushko Canadian Internet Policy and Public Interest Clinic, rather than providing a specific list of places protected under s. 162(1)(a), Parliament chose to define the protected places in a principled and normative way. Section 162(1)(a) stipulates a rule that normatively identifies a class of quintessentially "safe places", such as bedrooms, bathrooms, and dressing rooms, in which people should be entitled to not be non‑consensually observed or visually recorded. In a "safe place", the sexual integrity and privacy of an individual should be respected, whether or not they or another person in the place are reasonably expected to be nude at the time of the observation or recording. This normative approach wisely avoids the arbitrary and anomalous results that would flow from a temporal interpretation of s. 162(1)(a).

[ 46 ] It is worth elaborating on how prohibiting voyeurism in such "safe places" under s. 162(1)(a), whether or not nudity is reasonably expected at the time of the surreptitious observation or recording, protects the privacy and sexual integrity of persons in those places.

[ 47 ] 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 the privacy and sexual integrity of that person, even if the person is not nude at the time of the observation or recording. As this Court noted in Jarvis, at para. 72, privacy and sexual integrity are intertwined, in the sense that violations of one can constitute and reinforce violations of the other. The sexual integrity of persons in "safe places" designated by s. 162(1)(a) is compromised even if they are not observed or recorded when nude, to expose intimate body parts, or to engage in sexual activity.

[ 48 ] The emotional and psychological harms caused by violations of sexual integrity, even from non-nude photographs, are illustrated in this case. The sentencing judge noted the statement of T.R.'s mother that T.R. was "disgusted" and "felt violated" when he learned of the photos, and that the offences had affected T.R.'s trust in his coaches and older males. G.C.'s mother stated that the offences had affected G.C.'s trust in coaches. Accordingly, an observation or recording in a quintessentially "safe place" violates trust and can result in the person's humiliation, objectification, exploitation, shame, or loss of self‑esteem, and can cause emotional and psychological harm, even if the person is not observed or recorded when nude.

[ 49 ] To sum up, reading s. 162(1)(a) as prohibiting surreptitious observation or recording of persons in specific places and without a temporal component promotes Parliament's purposes of protecting privacy and sexual integrity. Persons in "safe places" such as bedrooms, bathrooms, and dressing rooms should be protected from such conduct, whether or not they are nude when surreptitiously observed or recorded.

[ 50 ] By contrast, interpreting s. 162(1)(a) with a temporal component detracts from Parliament's purposes of protecting privacy and sexual integrity. On such an interpretation, surreptitious photos taken in dressing rooms are not criminal if the Crown cannot prove that nudity was reasonably expected at that specific time. This would leave significant gaps in protection that Parliament would not have intended.

[ 51 ] Relatedly, the Crown argues that such an interpretation of s. 162(1)(a) would result in arbitrary and absurd results: groups of children who are too self‑conscious about their bodies to shower or change their underwear in dressing rooms would be less protected from surreptitious photography than children who are comfortable doing so. As Mr. Downes' counsel confirmed at the hearing before this Court, a temporal interpretation of s. 162(1)(a) could lead to these anomalous distinctions. Parliament is presumed not to have intended arbitrary and absurd results: Rizzo & Rizzo Shoes Ltd. (Re), at para. 27.

[ 52 ] The majority of the Court of Appeal concluded otherwise by taking a narrow perspective that views sexual offences as concerned with sexual propriety alone rather than also with sexual integrity. The majority appears to have concluded that s. 162(1)(a) was intended to apply to persons who expect to observe or record nudity or sexual activity (para. 55), and that an invasion of privacy alone does not violate the sexual integrity of the subjects of surreptitious photography. But the majority's perspective is unduly narrow and out of step with this Court's decision in Jarvis, where a majority of this Court recognized that "[s]exual integrity [is] … a person's right to have their sexuality and physicality respected by others": Jarvis, at para. 68.

[ 53 ] I disagree. The majority's reasoning assumes that in order to stigmatize conduct as a violation of sexual integrity, and thus as a sexual offence, there must be a risk of capturing nude images of subjects in "safe places". But that is not the test; the question is whether the conduct violates the sexual integrity of the subjects. Violations of sexual integrity do not require nudity or explicit sexual activity. Sexual integrity can be violated by surreptitious photography in a "safe place" even when the subjects are not nude, where the effect of such conduct can result in humiliation, objectification, exploitation, shame, or loss of self‑esteem, and can cause emotional and psychological harm.

(d) Conclusion

[ 54 ] Section 162(1)(a) does not have an implicit temporal component requiring the Crown to prove that nudity was reasonably expected at the specific time when the photos were taken. As a result, the trial judge appropriately convicted Mr. Downes of voyeurism under s. 162(1)(a). I therefore disagree with the majority of the Court of Appeal that ordered a new trial.

B. If Section 162(1)(a) Does Not Have an Implicit Temporal Component, Is the Provision Unconstitutionally Overbroad Contrary to Section 7 of the Charter?

[ 55 ] Mr. Downes submits that if this Court accepts that s. 162(1)(a) does not have an implicit temporal component, then the provision is unconstitutionally overbroad contrary to s. 7 of the Charter. He says that reading the provision in this way would capture conduct that is "entirely innocent" and that does not engage the harms identified by Parliament, such as taking photos of people fully clothed in a bedroom or bathroom.

[ 56 ] There is a serious question as to whether Mr. Downes can challenge the constitutionality of s. 162(1)(a) in this Crown appeal as of right under s. 693(1)(a) of the Criminal Code. Such an appeal is limited to a "question of law" (s. 693(1)(a)), but Mr. Downes' constitutional challenge may require resort to evidence that was not called at trial on this issue, and may thus raise questions of fact. However, I find it unnecessary to decide this threshold question.

[ 57 ] I have concluded, however, that it is unnecessary to decide whether the constitutional issue raised by Mr. Downes is properly before this Court because, in any event, this is not a case in which this Court should exercise its discretion to exceptionally decide a constitutional issue raised for the first time on appeal. As this Court observed in MacKay v. Manitoba, [1989] 2 S.C.R. 357, at p. 361, "constitutional cases … require a factual foundation". Mr. Downes did not raise the constitutional issue at trial — he only raised it in his factum before the Court of Appeal — and therefore the evidence at trial was not directed to this issue.

[ 58 ] In this case, deciding whether s. 162(1)(a) is unconstitutionally overbroad would prejudice the Crown and would require the Court to address an important Charter issue in a factual vacuum. Because Mr. Downes did not raise the constitutional issue at trial, the Crown had no opportunity to adduce evidence that may be relevant to the constitutional question. As the Crown submits, such evidence could include social science evidence and evidence of Parliament's purposes in enacting the voyeurism offence, which might bear on the scope of the provision and the range of situations to which it applies. The Court should have the benefit of a full evidentiary record before deciding whether s. 162(1)(a) is unconstitutionally overbroad: Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at para. 22. I therefore decline to address the constitutional issue.

VI. Disposition

[ 59 ] I would allow the appeal, set aside the judgment of the Court of Appeal for British Columbia, and restore the convictions.

Appeal allowed.

Solicitors

Solicitor for the appellant: Ministry of Attorney General — B.C. Prosecution Service, Victoria.

Solicitors for the respondent: Sorochan Law Corporation, Vancouver; Orris Law Corporation, Vancouver.

Solicitor for the intervener the Attorney General of Ontario: Ministry of the Attorney General — Crown Law Office — Criminal, Toronto.

Solicitor for the intervener the Attorney General of Alberta: Alberta Crown Prosecution Service — Appeals and Specialized Prosecutions Office, Edmonton.

Solicitor for the intervener the Samuelson‑Glushko Canadian Internet Policy and Public Interest Clinic: University of Ottawa, Faculty of Law, Common Law Section, Ottawa.

* Brown J. did not participate in the final disposition of the judgment.