Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 3 minutes.

  1. On Friday, March 10, 2023, the Supreme Court of Canada is releasing its decision in R. v. Downes. At issue are the elements of the offence of voyeurism.
  2. R. v. McGregor, 2023 SCC 4 was released on February 17, 2023. The Court dismissed the appeal, affirmed the convictions, and found it unnecessary to deal with the issue of extraterritoriality applicability of the Charter.

Head over to Fantasy Courts to lock in your predictions for this week’s decision or read more about the cases below.

Elements of the Offence of Voyeurism

Appeal by leave from R. v. Downes, 2022 BCCA 8

View the SCC webcast & read the factums

What Happened?

Trial: The respondent, Randy William Downes, was convicted of two counts of voyeurism. He was found to have surreptitiously taken photographs of adolescent male hockey players in stages of undress in a dressing room while he was coaching. 

Court of Appeal: A majority of the Court of Appeal allowed Mr. Downes’ appeal, set aside the conviction and ordered a new trial. The majority explained that, while it was open to the trial judge to find nudity was expected in the dressing room in which the offences were found to have occurred, the conflicts in evidence regarding whether nudity was expected at the time the photos were taken were not addressed. In dissent, Dickson J.A. would have dismissed the appeal on the basis that the characterization of “a place” under s. 162(1) of the Criminal Code does not include a temporal use component. In her view, the relevant inquiry was whether the place in which the impugned conduct occurred 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.

What Else Should You Know Before Making a Prediction?

Defence counsel has had a particularly tough time with respect to appeals involving sexual assault related offences in the past few years. I wouldn’t be surprised if that trend continued with this Crown appeal.

Last SCC Decisions

On February 17, 2023, the SCC released R. v. McGregor, 2023 SCC 4. A unanimous Supreme Court dismissed the appeal and affirmed his convictions.

Held: The Canadian Forces investigators did not infringe his s. 8 rights therefore there is no need to consider the extraterritorial applicability of the Charter.

Key Points:

Although the Court was unanimous in the result, there were three sets of reasons. A majority had some harsh words for interveners who they criticized for going beyond their proper role by asking the Court to overrule Hape. They said that issue was not properly before the Court. 

Justices Martin and Karakatsanis however found that the issue was squarely before the Court. They found that a purposive reading of s. 32(1) of the Charter supports the conclusion that the Charter applies extraterritorially to the conduct of Canadian Forces officials while fulfilling their investigative duties in a foreign state and that a Canadian court may assess that conduct for Charter compliance.

91% correctly predicted the result.

-Tom Slade

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