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I Spy with my Little Camera: Voyeurism and Reasonable Expectation of Privacy after Jarvis

By Jessica St. Pierre - Lawyer at Langevin Morris Smith LLP

Recently, the Supreme Court of Canada (“SCC”) released the decision R. v. Jarvis[1] wherein it was determined that a reasonable expectation of privacy (“REP”) can be established in public spaces. In coming to this conclusion, the SCC provided a non-exhaustive list of considerations to determine whether a given situation could give rise to a REP. The following article outlines the evolution of REP as well as discusses the ethical concerns of the method by which the SCC undertook to define REP in the context of voyeurism.

Peeping Teacher

R. v. Jarvis centers around a high school teacher who secretly recorded his female students’ breasts and upper bodies with a camera pen while they were engaged in ordinary school-related activities in common areas of the school. The students were not aware that they were being recorded by the accused, nor did they consent to the recordings. A school board policy in effect at the relevant time prohibited the type of conduct engaged in by the accused.

The teacher in question was charged with voyeurism under s.162(1)(c) of the Criminal Code of Canada. The offence of voyeurism is committed where a person surreptitiously observes or makes a visual recording of another person who is in circumstances that give rise to a REP, if the observation or recording is done for a sexual purpose. Simply put, the offence of voyeurism can be broken down into three components:

  1. There must be an observation or recording of someone;
  2. The observed/recorded person must have a reasonable expectation of privacy; and,
  3. The observation/recording must be done for a sexual purpose.

At trial, Jarvis admitted he had secretly made the recordings, thus satisfying the first criterion of the offence. As a result, only two questions remained: (1) whether the students the accused had recorded were in circumstances that give rise to a REP, and (2) whether the accused made the recordings for a sexual purpose. While the trial judge found that the high school students had a REP in the classroom, the trial judge ultimately acquitted the accused on the basis that the Crown did not prove beyond a reasonable doubt that the accused made the surreptitious recordings for a sexual purpose.

At the Court of Appeal for Ontario, the majority, led by Justices Watt and Feldman, found that the recordings were, in fact, made for a sexual purpose, but found that the public location of a school did not give rise to REP. The appeal was dismissed. Justice Huscroft’s dissent on this issue allowed for this matter to proceed to the SCC. The primary issue on appeal at the SCC was whether the students filmed by the accused enjoyed a REP in school. The Court concluded unanimously that the students did, indeed, have a REP and that all elements of the offence were satisfied. The Court of Appeal for Ontario decision was overturned, and a conviction was entered against Mr. Jarvis.

Reasonable Expectation of Privacy in Jarvis

In determining that the high school students benefited from a REP, the SCC found that circumstances that give rise to a REP for the purposes of s. 162(1) of the Criminal Code are circumstances in which a person would reasonably expect not to be subject to the type of observation or recording that, in fact, occurred. The inquiry should take into account the entire context in which the impugned observation or recording took place. To this end, the SCC provided the following non-exhaustive list of considerations in determining whether a person who was observed or recorded was in circumstances that give rise to a REP:

      1. The location the person was in when she was observed or recorded.
      2. The nature of the impugned conduct, that is, 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.
      9. The personal attributes of the person who was observed or recorded[2].

The SCC was careful to clarify that each factor need not be present in a given situation to give rise to a REP. Moreover, a recording in a public bathroom, for instance, would trigger a REP regardless of whether or not the other listed factors were present[3]. A person does not “lose all expectation of privacy, as that concept is ordinarily understood, simply because she is in a place where she knows she can be observed by others or from which she cannot exclude others”.[4] Privacy is not “all-or-nothing concept”[5]. As result of this decision, privacy is no longer limited to the binary notions of public vs. private areas.

Section 8 Protections

The jurisprudence pertaining to s. 8 of the Canadian Charter of Rights and Freedoms was instructive in the SCC majority’s interpretation of the wording of s. 162(1) of the Criminal Code of Canada. More specifically, the consideration of the totality of circumstances to establish and define a REP under s. 8 was borrowed to define the very same concept under s. 162(1). Chief Justice Wagner took the position that s. 162(1) was enacted in 2005, and, as such, Parliament must have been well aware of Charter jurisprudence that had previously given meaning to the notion of REP.

Section 8 protects people, not places, against unjustified state intrusions on their privacy interests[6] and involves a two-step analysis: 1) has there been a “search” or a “seizure”? 2) If so, was the search or seizure reasonable? The courts have defined ‘search’ for section 8 purposes as any state activity that interferes with a REP. This can include looking for things that are tangible or intangible, such as spoken words and electronic data[7]. The threshold for s.8 protection is that the claimant have a REP in the subject matter of the search based on a subjective expectation that it would be private and that the expectation, on the “totality of the circumstances”, was objectively reasonable.[8]

The totality of the circumstances test determines both the existence and extent of the REP, and is one of substance, not form[9]. Four lines of inquiry guide the application of the test[10]:

  1. an examination of the subject matter of the search;
  2. a determination as to whether the claimant had a direct interest in the subject matter;
  3. an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and
  4. an assessment as to whether this subjective expectation of privacy was objectively reasonable[11].

If there is no REP, the protections of section 8 are not engaged and the analysis ends there. If there is a REP of any degree, section 8 will be engaged to prevent state interference except under the authority of a warrant or other reasonable law[12].

Analysis

Despite what appears to be a positive expansion of the notion of REP, there are critical issues with the majority’s use of s. 8 Charter jurisprudence to interpret the wording of s. 162(1) of the Criminal Code, as identified by the SCC minority led by Justices Rowe, Côté and Brown. Simply put, the conceptual framework for defining Charter rights should not be used to define the scope of offences in the Criminal Code. To do so is perversion of the very rights guaranteed by the Charter. The purpose and function of s. 8  and s. 162(1)  are fundamentally at odds. Moreover, the use of Charter jurisprudence to interpret the wording of the Criminal Code puts the judiciary in the position of creating new common law offences, despite their abolition by s. 9 (a) of the Criminal Code. Charter rights are meant to evolve, but Criminal Code provisions are meant to stay fixed as of the time of their enactment. The expansion of the scope of criminal liability, as seen in Jarvis, precludes the certainty and stability that are required for fair notice of committing a criminal offence[13].

Jarvis creates a dangerous precedent whereby Charter analysis may be used against those facing criminal charges; both by reinforcing the rights of the complainants and expanding Criminal Code provisions through common law. However, if privacy rights for complainants can be expanded through the adoption of new considerations to establish REP, the same must be true for accuseds. The SCC’s analysis in Jarvis and the nine non-exhaustive considerations to establish a REP may and should be used by criminal defence lawyers to expand upon s. 8 rights. Expectations of privacy are no longer confound to private spaces and can be established in public spaces through what appears to be a myriad of considerations for both complainants and accuseds.

 

[1] 2019 SCC 10.

[2] Jarvis, at para 29.

[3] Jarvis, para 30.

[4] Jarvis, at para 37.

[5] Jarvis, at para 41.

[6] Hunter v. Southam Inc., [1984] 2 S.C.R. 145 (S.C.C.); R. v. Gomboc, [2010] 3 S.C.R. 211 at paras 17, 75.

[7] R. v. Morelli, [2010] 1 S.C.R. 253 (S.C.C.).

[8] R. v. Marakah, 2017 SCC 59, at para. 10 (S.C.C); R. v. Jones, 2017 SCC 60, at para. 13 (S.C.C.); R. v. Le, 2018 ONCA 58, at para 33.

[9] R. v. Edwards, [1996] 1 S.C.R. 128 at para 45.

[10] R. v. Cole, [2012] 3 S.C.R. 34 at para 40; R. v. Tessling, [2004] 3 S.C.R. 432 at para 32.

[11] Tessling at paragraphs 31-32; R. v. Gomboc, [2010] 3 S.C.R. 211 at paras 18, 78; Cole at para 40; R. v. Patrick, [2009] 1 S.C.R. 579 at para 27.

[12]  Cole, supra at para 9.

[13] Jarvis, at para 97.

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