Right to privacy not an all-or-nothing concept, says SCC in voyeurism case

Videos of female students that a high school teacher surreptitiously recorded breached those students’ reasonable expectation of privacy, and the act constitutes criminal voyeurism, the Supreme Court of Canada ruled today. The decision, penned by the chief justice of the court, also established considerations for circumstances that give rise to a reasonable expectation of privacy.

Right to privacy not an all-or-nothing concept, says SCC in voyeurism case
Jane Bailey, a professor in the Faculty of Law, Common Law Section, at the University of Ottawa, was lead counsel for the intervener Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic.

Videos of female students that a high school teacher surreptitiously recorded breached those students’ reasonable expectation of privacy, and the act constitutes criminal voyeurism, the Supreme Court of Canada ruled today. The decision, penned by the chief justice of the court, also established considerations for circumstances that give rise to a reasonable expectation of privacy.

In R. v. Jarvis, the majority of the Supreme Court found 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, which was enacted in 2005 to create the criminal offence of voyeurism.

Privacy is not an all-or-nothing concept, Chief Justice Richard Wagner wrote in his decision, and being in a public space, as these students were (and where security cameras were in operation) did not negate all expectation of privacy regarding recordings or observations.

The court was unanimous in its decision, with all nine judges agreeing there was a reasonable expectation of privacy in the case.

“In my view, circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1)of the Criminal Code are circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred” in this case, Wagner wrote in his reasons, with justices Rosalie Abella, Michael Moldaver, Andromache Karakatsanis, Clément Gascon and Sheilah Martin concurring.

“To determine whether a person had a reasonable expectation of privacy in this sense, a court must consider the entire context in which the observation or recording took place,” Wagner continued.

“. . . in any given case, these considerations may include the location where the observation or recording occurred; the nature of the impugned conduct, that is, whether it consisted of observation or recording; the awareness or consent of the person who was observed or recorded; the manner in which the observation or recording was done; the subject matter or content of the observation or recording; any rules, regulations or policies that governed the observation or recording in question; the relationship between the parties; the purpose for which the observation or recording was done; and the personal attributes of the person who was observed or recorded.”

Jane Bailey, a professor in the Faculty of Law, Common Law Section at the University of Ottawa, who was lead counsel for the intervener, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, told Legal Feeds, “We’re very pleased with the broad, normative privacy framework that the Court takes,” including in its rejection of the idea that privacy is “something that never can be enjoyed in places considered public.”

The decision also marks the first time the Supreme Court has addressed the voyeurism provisions of the Criminal Code enacted in 2005, she says, and “the definition of reasonable expectation of privacy is an integral component of that provision.”

Ryan Jarvis, a high school English teacher, was charged with voyeurism under s. 162(1)(c) of the Criminal Code for having used a camera pen to surreptitiously take videos of female students that focused on their faces and upper bodies, including their chests and cleavage. An offence is committed under s. 162(1)(c) when someone surreptitiously observes or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if such observation or recording is done for a sexual purpose.

Jarvis was acquitted at trial. The trial judge concluded that the students had a reasonable expectation of privacy, but the judge was not satisfied beyond a reasonable doubt that the video recordings were made for a sexual purpose.

The majority of Ontario’s Court of Appeal dismissed the Crown’s appeal, holding that the trial judge erred in finding that the videos were not made for a sexual purpose, but that he also erred in finding that the videos were taken in circumstances that gave rise to a reasonable expectation of privacy. Justice Grant Huscroft dissented; he agreed with the majority that the trial judge erred in finding that the videos were not made for a sexual purpose, but, in his opinion, the students did have a reasonable expectation of privacy in the circumstances of this case.

In today’s decision, the majority of the Supreme Court found that Parliament had chosen the wording of its voyeurism provision under s. 162(1) purposely and that the wording supports the view that a reasonable expectation of privacy does not turn solely on the location of the person being observed or recorded.

As well, judgments about privacy expectations in the context of s. 8  of the Charter, which protects against unreasonable search and seizure, “are informed by our fundamental shared ideals about privacy as well as our everyday experiences,” the chief justice wrote.

In concurring reasons, Justice Malcolm Rowe, also writing for justices Suzanne Côté and Russell Brown, disagreed with the majority on s. 8 Charter jurisprudence, which in his view should not inform the interpretation of s. 162(1), concerning voyeurism, of the Criminal Code. 

“There’s a difference of opinion on the wisdom of doing that, given that the jurisprudence under s. 8 arises under a very specific context that deals with the relationship of the individual and the state, rather than between individuals,” explains Zachary Kerbel of Ursel Phillips Fellows Hopkinson LLP in Toronto, who with Saman Wickramasinghe represented the respondent.

The court has “crafted an approach to privacy that is highly nuanced and contextual,” say Kerbel and Wickramasinghe, who are concerned that the language of the decision is not clear and accessible enough to make obvious what might constitute voyeurism. They are also concerned about “a risk of increased charges being laid in respect of voyeurism offences [and of] capturing things that before now may not have been considered to attract criminal liability. . . .

“When you look at the ubiquity of smartphones among teenagers and even pre-teenagers, it seems to us there’s a not-unrealistic risk of casting a net of criminal liability over a larger part of the population than we might want [to do] as a society,” says Kerbel.

In a statement provided to Legal Feeds, a spokeswoman for the Privacy Commissioner of Canada noted, “In determining whether an individual’s privacy interests have been invaded, the ruling also underscored the need to look at these matters on a case-by-case basis, taking into account all of the particular circumstances.

“In this regard, we were pleased to see the court reaffirm that privacy must be evaluated in light of changing technologies, which can make it easier for the state and private entities to ‘glean, store and disseminate information’ about individuals, and that privacy should not correspondingly shrink as a result.”

Bailey sees the decision as protecting and upholding equality rights, in particular for girls and young women. “In a school setting, there was a breach of trust,” she notes. The majority “reiterate the special privacy protections that young people should be afforded, because of the power imbalance between young people and adults. . . .

“At the end of the day, though, the court doesn’t explicitly draw a connection between privacy and equality. It should have an important positive effect on members of equality-seeking communities, who are disproportionately likely to be targeted by these kinds of offences.”

 

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