Mar 14, 2019
Canada Supreme Court Rules That Privacy is Not An “All-or-Nothing Concept”
American Bar Association's Business Law Today
While considering the specific criminal charge of voyeurism, Canada’s Supreme Court of Canada recently confirmed that privacy is not an ”all-or-nothing concept,” and being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording.
This case involved Mr. Ryan Jarvis, an English teacher at a high school who used a camera concealed inside a pen to make surreptitious video recordings of female students (particularly focusing on their faces, upper bodies and breasts) while they were engaged in ordinary school-related activities in common areas of the school. The students were unaware they were being recorded, and a school board policy in effect at the relevant time expressly prohibited the type of conduct engaged in by the accused. Mr. Jarvis was charged with voyeurism under s. 162(1)(c) of the Canadian Criminal Code (where a person surreptitiously observes or makes a visual recording of another person who is in circumstances that give rise to a reasonable expectation of privacy, if the observation or recording is done for a sexual purpose).
At trial, Mr. Jarvis admitted he had surreptitiously made the video recordings but the trial judge acquitted him because he was not satisfied the recordings were made for a sexual purpose. The Court of Appeal concluded that the trial judge had erred in law in failing to find that the accused made the recordings for a sexual purpose, but upheld the accused’s acquittal on the basis that the students were not in circumstances that give rise to a reasonable expectation of privacy since they were recorded in a “public” space (public areas of their high school which had security cameras recording them).
The Supreme Court allowed the appeal (and entered the conviction) with the majority confirming that the students recorded by the accused were in circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code. The Court found that “circumstances that give rise to a reasonable expectation of privacy” are circumstances in which a person would reasonably expect not to be the subject of the type of recording that had occurred, while considering the entire context in which the observation or recording took place. Significantly, the Court found that privacy is not an “all-or-nothing concept,” and whether an observation or recording would generally be regarded as an invasion of privacy depends on a variety of factors. The Court set out a non-exhaustive list of considerations, which include: (1) the location the person was in when she was observed or recorded, (2) the nature of the impugned conduct (whether it consisted of observation or recording), (3) awareness of or consent to potential observation or recording, (4) the manner in which the observation or recording was done, (5) the subject matter or content of the observation or recording, (6) any rules, regulations or policies that governed the observation or recording in question, (7) the relationship between the person who was observed or recorded and the person who did the observing or recording, (8) the purpose for which the observation or recording was done, and (9) the personal attributes of the person who was observed or recorded.
Considering the overall context, the Court found that there can be no doubt that the students’ circumstances give rise to a reasonable expectation that they would not be recorded as they had been, especially considering that they were (i) teenage students at a high school; (ii) recorded by their teacher in breach of the relationship of trust; and (iii) in contravention of a formal school board policy that prohibited such recording. The Court confirmed that individuals “going about their day-to-day activities – whether attending school, going to work, taking public transit or engaging in leisure pursuits…reasonably expect not to be the subject of targeted recording focused on their intimate body parts (whether clothed or unclothed) without their consent.” In recording these videos, the accused acted contrary to the reasonable expectations of privacy that would be held by persons in the circumstances of the students when they were recorded.
This article was originally published in the American Bar Association's Business Law Today.