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68 Crim. L.Q. 288 (2020)
Privacy, Voyeurism, and Statutory Interpretation

handle is hein.journals/clwqrty68 and id is 306 raw text is: Privacy, Voyeurism, and Statutory Interpretation Michael Plaxton 1. Introduction Section 162(1) of the Criminal Code sets out the offence of voyeurism. The section reads as follows: 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. In Jarvis, a high school teacher was found to have used a camera pen to video-record the chest and cleavage of female students and one female teacher. The central issue was whether this constituted voyeurism under s. 162(1)(c). In resolving that question, the Supreme Court of Canada was called upon to interpret the phrase circumstances that give rise to a reasonable expectation of privacy - which I will reference as the privacy clause. Ultimately, a majority of the court concluded that the defendant's conduct was indeed encompassed by the provision. That result squared nicely with the moral intuitions of many onlookers. In this comment, however, I do not focus on the substantive implications of the majority's ruling. Instead, I dwell on the techniques used by the majority to interpret the privacy clause. For the majority's approach * Professor of Law, University of Saskatchewan. Many thanks to Sarah Burningham, Brock Jones, Glen Luther, Carissima Mathen, Dwight New- man, and Benjamin Oliphant for their comments and suggestions on this and earlier drafts. The usual disclaimer applies. 288

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