Case: R. v. Jarvis, 2017 ONCA 778
Special Note: There’s a publication ban in this case – see “Warning” at beginning of decision.
Keywords: voyeurism; sexual purpose; reasonable expectation of privacy; Criminal Code; section 162(1)(c)
The Respondent, a high school teacher, made surreptitious video recordings of female students and a female teacher using a camera pen. After reports and personally observing the Respondent recording students, the principal obtained the camera pen from the Respondent and contacted police. The camera pen contained 19 videos of 30 separate individuals. The students, aged 14-18, were not aware of or did not consent to the recordings.
The Respondent was arrested and charged with voyeurism. Section 162(1)(c) of Criminal Code provides:
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 …
(c) the observation or recording is done for a sexual purpose.
After dealing with a s. 8 Charter claim, the trial judge considered two issues:
- whether the recordings were made in circumstances that gave rise to a reasonable expectation of privacy; and
- whether they were made for a sexual purpose.
The trial judge acquitted the Respondent, finding that there was a reasonable expectation, but reasonable doubt on whether the recordings were made for a sexual purpose.
The Crown appealed the acquittal under s. 676(1)(a) of the Code. The Court of Appeal found the trial judge erred in his finding the videos were not made for a sexual purpose. The lack of nudity or sexual activity was not determinative. Using a contextual approach to the offence of voyeurism, the fact the videos were focused on breasts and cleavage was sufficient to prove the videos were made for a sexual purpose.
However, the majority dismissed the appeal because it found that the students did not have a reasonable expectation of privacy. Huscroft J.A., dissenting, would have allowed the appeal, finding the students had a reasonable expectation of privacy.
There’s a strong likelihood this case will go to the Supreme Court of Canada. As a result of Huscroft J.A.’s dissent, the Crown has an appeal as of right pursuant to s. 693(1)(a). Even without an as of right appeal, this case would likely meet the public importance test for leave as it asks what does it mean to have privacy in a public place. As pointed out by Huscroft J.A., the unfortunate result of the majority’s decision is that surreptitious visual recording of high school students at school for a sexual purpose is not illegal. (para. 134)
Majority: No Reasonable Expectation of Privacy in Public Places
With respect to whether the recordings were made in circumstances giving rise to a reasonable expectation of privacy, the Feldman J.A. for the majority applied the language of the Code in strict terms and declined to provide an expanded interpretation of s. 162(1):
While it may have been open to Parliament to draft the offence of voyeurism more broadly, so that all surreptitious (non-consensual) observing and/or recording of a person who is within the circumstances listed in subsections (a), (b) and (c) is covered by this criminal offence, Parliament specifically included the additional requirement of “circumstances that give rise to a reasonable expectation of privacy”. (para. 106)
The majority reasoned that, if being surreptitiously recorded without consent (and for a sexual purpose) were enough to give rise to a reasonable expectation of privacy, the privacy requirement in the Code would be redundant.
The majority then found that students “engaging in normal school activities and interactions in the public areas of the school where there were many other students and teachers” (para. 108) could not have a reasonable expectation of privacy. In short, a person fully clothed in public (and not engaged in toileting or sexual activity) usually won’t have a reasonable expectation of privacy.
Dissent: Reconsidering the Concept of Reasonable Expectation of Privacy
In dissent, Huscroft J.A. stated that the reasonable expectation of privacy is a normative rather than a descriptive or predictive concept. In other words, whether the students and teacher in question were entitled to a reasonable expectation of privacy must be established in particular rather than general circumstances:
I see things differently. This case presents a straightforward question: should high school students expect that their personal and sexual integrity will be protected while they are at school? The considerations relevant to answering that question include the following:
- students are required to attend school for an educational purpose;
- schools are not public places open to all; access to them is controlled by school authorities;
- the high school’s hallways and grounds are under 24-hour video surveillance, but the surveillance does not focus on particular students or their body parts;
- access to surveillance video recordings for personal use is not permitted; and
- school board policy prohibited the appellant from making the type of visual recordings that he made. (para. 131)
Huscroft J.A. found the majority’s view, that a person would not normally have a reasonable expectation of privacy in public, as unduly narrow and undermined the purpose of s. 162(1): “It assumes that if complete privacy is not possible, one cannot have a reasonable expectation of privacy even to a limited extent.” (para. 132)
For Huscroft J.A., “the students’ interest in privacy is entitled to priority over the interests of anyone who would seek to compromise their personal and sexual integrity while they are at school.” (para. 133) Accordingly, he concluded that the students and teacher in this case had a reasonable expectation of privacy in the circumstances.
Supreme Court of Canada
If this matter does go to the SCC, it will be difficult to predict how the Court will rule as result of recent privacy cases and its changing composition:
- The Court heard the appeal in v. Jones on March 23, 2017 regarding privacy in text messages/cell phone records and as of October 17, 2017, a decision has not yet been released.
- In Douez v. Facebook, Inc., 2017 SCC 33, released June 23, 2017, we saw a 4:3 split with three sets of reasons on whether a forum selection clause was enforceable. The majority emphasized the importance of privacy rights and access to domestic courts for protection.
- The SCC recently demonstrated an inclination to defer to Parliament with respect to what could be seen as expanding the scope of a criminal offence. In v. D.L.W., 2016 SCC 22, Cromwell J., for the majority, wrote: “[T]he courts should not, by development of the common law, broaden the scope of liability for this offence [bestiality], as the trial judge did. Any expansion of criminal liability for this offence is within Parliament’s exclusive domain…” (para. 19) Notably, Abella J. dissented in that decision and Cromwell J. has since retired.
Counsel for the Appellant: Christine Bartlett-Hughes and Jennifer Mannen (Ministry of the Attorney General, Toronto)
Counsel for the Respondent: Susan Chapman (Ursel Phillips Fellows Hopkinson LLP, Toronto) and Jennifer Micallef (Ryder Wright Blair and Holmes LLP, Toronto)