Privacy, Voyeurism, and Statutory Interpretation
Criminal Law Quarterly, Forthcoming
36 Pages Posted: 18 Jan 2018 Last revised: 18 Mar 2018
Date Written: January 15, 2018
Recently, in Jarvis, the Ontario Court of Appeal was called upon to interpret the phrase “circumstances that give rise to a reasonable expectation of privacy”, as contained in the offence of voyeurism. Controversially, a majority concluded that the clause should be construed narrowly, upholding the acquittal of a high school teacher who had used a camera pen to record the chests of female students and teachers. Huscroft JA, dissenting, echoed the sentiments of many when he rejected the majority’s reading as absurd.
My aim is not primarily to critique either opinion. Rather, I want to use the decision, and the offence of voyeurism, as a springboard for a more wide-ranging discussion of statutory interpretation. In particular, I want to reflect on a number of dimensions of interpretation which tend to be either misunderstood or neglected. These concern, among others, arguments from absurdity; the use (and usefulness) of extrinsic evidence; the claim that Parliament intended the courts to develop or expand the ambit of criminal offences ‘at common law’; and what I am describing as the presumption of restraint. When we better understand these principles and presumptions, the majority’s approach in Jarvis – which appears to be in tension with ‘common sense’ and even the text of the voyeurism scheme generally – becomes more plausible.
Keywords: statutory interpretation, privacy, voyeurism, absurdity, restraint, criminal law, purposive interpretation, extrinsic evidence, parliamentary intent
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