Privacy, Voyeurism, and Statutory Interpretation

Criminal Law Quarterly, Forthcoming

36 Pages Posted: 18 Jan 2018 Last revised: 18 Mar 2018

Michael Plaxton

College of Law, University of Saskatchewan

Date Written: January 15, 2018

Abstract

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

Suggested Citation

Plaxton, Michael, Privacy, Voyeurism, and Statutory Interpretation (January 15, 2018). Criminal Law Quarterly, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3102651

Michael Plaxton (Contact Author)

College of Law, University of Saskatchewan ( email )

15 Campus Dr
Saskatoon, Saskatchewan S7N5A6
Canada
3069665894 (Phone)

Register to save articles to
your library

Register

Paper statistics

Downloads
158
rank
173,194
Abstract Views
1,219
PlumX