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Supreme Court of Canada lays down a very nuanced, contextual understanding of “expectation of privacy”

The Supreme Court of Canada issued a very important privacy decision in R v Jarvis. I say it’s important for a number of reasons. First, it’s an important decision that strongly defines expectation of privacy for the Canadian Criminal Code offence of voyeurism. Second, I expect it will have serious knock-on effects on considering privacy in the regulatory and common-law contexts. Finally, it will inform other instances in our Criminal Code where an expectation of privacy is relevant. The decision has a very highly nuanced and contextual test for determining where there is a reasonable expectation of privacy.

The case is largely about a teacher in a high school who used a covert, miniature camera to take videos of young women’s cleavage over more than a year. It was discovered and he was charged under the relatively new voyeurism offence in the Code. Two essential elements of the offence are that there have to be circumstances that give rise to a reasonable expectation of privacy and the recording has to be done for a sexual purpose.* In R v Jarvis, the recording took place in otherwise “public areas” of the school, so not in washrooms or changing rooms. It also has to be “surreptitious”, but the observation itself was not surreptitious. What was being recorded was largely observed in real-time by the teacher. The recording was surreptitious.

The trial judge found that there was a reasonable expectation of privacy but the crown had not proven the sexual purpose beyond a reasonable doubt. It’s hard to get one’s head around that, as the teacher had many, many recordings spanning more than a year of students’ cleavage and chest areas. I’m not sure what other purpose he could have had.

The crown appealed to the Ontario Court of Appeal, which had little difficulty concluding that there was a sexual purpose but split on the reasonable expectation of privacy in a “public place” where the young women could generally be observed by teachers and other students.

On appeal to the Supreme Court of Canada, the Court found the accused to be guilty of the offence and provided a very nuanced and contextual framework for determining where and when there is a reasonable expectation of privacy. What is particularly notable for technology lawyers is the role that the covert recording device plays in this analysis. It is not simply a matter that what was recorded could have been observed with one’s bare eyes. The tech plays a role in a couple of ways. Recording is more intrusive than mere observation and awareness of (or the lack of awareness) the observation also plays an important role.

The Court provided a non-exhaustive list of nine factors that courts should consider in deciding the question:

[29] The following non-exhaustive list of considerations may assist a court in determining whether a person who was observed or recorded was in circumstances that give rise to a reasonable expectation of privacy:

(1) The location the person was in when she was observed or recorded. The fact that the location was one from which the person had sought to exclude all others, in which she felt confident that she was not being observed, or in which she expected to be observed only by a select group of people may inform whether there was a reasonable expectation of privacy in a particular case.

(2) The nature of the impugned conduct, that is, whether it consisted of observation or recording. Given that recording is more intrusive on privacy than mere observation, a person’s expectation regarding whether she will be observed may reasonably be different than her expectation regarding whether she will be recorded in any particular situation. The heightened impact of recording on privacy has been recognized by this Court in other contexts, as will be discussed further at para. 62 of these reasons.

(3) Awareness of or consent to potential observation or recording. I will discuss further how awareness of observation or recording may inform the reasonable expectation of privacy inquiry at para. 33 of these reasons.

(4) The manner in which the observation or recording was done. Relevant considerations may include whether the observation or recording was fleeting or sustained, whether it was aided or enhanced by technology and, if so, what type of technology was used. The potential impact of evolving technologies on privacy has been recognized by the courts, as I will discuss further at para. 63 of these reasons.

(5) The subject matter or content of the observation or recording. Relevant considerations may include whether the observation or recording targeted a specific person or persons, what activity the person who was observed or recorded was engaged in at the relevant time, and whether the focus of the observation or recording was on intimate parts of a person’s body. This Court has recognized, in other contexts, that the nature and quality of the information at issue are relevant to assessing reasonable expectations of privacy in that information. As I will discuss further at paras. 65-67 of these reasons, this principle is relevant in the present context as well.

(6) Any rules, regulations or policies that governed the observation or recording in question. However, formal rules, regulations or policies will not necessarily be determinative, and the weight they are to be accorded will vary with the context.

(7) The relationship between the person who was observed or recorded and the person who did the observing or recording. Relevant considerations may include whether the relationship was one of trust or authority and whether the observation or recording constituted a breach or abuse of the trust or authority that characterized the relationship. This circumstance is relevant because it would be reasonable for a person to expect that another person who is in a position of trust or authority toward her will not abuse this position by engaging in unconsented, unauthorized, unwanted or otherwise inappropriate observation or recording.

(8) The purpose for which the observation or recording was done. I will explain why this may be a relevant consideration at paras. 31-32 of these reasons.

(9) The personal attributes of the person who was observed or recorded. Considerations such as whether the person was a child or a young person may be relevant in some contexts.

[30] I emphasize that the list of considerations that can reasonably inform the inquiry into whether a person who was observed or recorded had a reasonable expectation of privacy is not exhaustive. Nor will every consideration listed above be relevant in every case. For example, recordings made using a camera hidden inside a washroom will breach reasonable expectations of privacy regardless of the purpose for which they are made, the age of the person recorded, or the relationship between the person recorded and the person who did the recording. In another context, however, these latter considerations may play a more significant role. The inquiry is a contextual one, and the question in each case is whether there was a reasonable expectation of privacy in the totality of the circumstances.

While anyone could have observed these young women in a relatively public place, what made it particularly problematic was the person who did the observing, in their position of power as a teacher, the victim of the offence, what was focused on and the manner of the observing. Not all of the factors weigh strongly in favour of a finding reasonable expectation of privacy in this case, but the vast majority of them do.

So what does this mean? I expect that we’ll be able to see more charges and convictions for similar practices, including “upskirting”. We’ll also have to see a more nuanced discussion about what is an expectation of privacy in generally public places and I’m confident this will inform judicial decision-making in the context of the privacy torts, which largely hinge on reasonable expectations of privacy, and what it unreasonable. We’ll also have to think hard about what role technology plays in privacy, particularly where CCTV cameras are said to be largely equivalent to real-time supervision by managers.

One aspect that I haven’t really turned my mind to at this point is the impact of this analysis on expectations of privacy vis-a-vis the state, where section 8 of the Charter is concerned.

  • There are other permutations that can give rise to the offence, which do require an expectation of privacy and are largely place-based:

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.

At least in a school, subsections (a) and (b) would generally be found in washrooms and change rooms.

Circulated by FOI COUNSEL
www.foicounsel.net

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