Video voyeurism in the Supreme Court of Canada: R v. Jarvis

The expression “reasonable expectation of privacy” is usually associated with section 8 of the Charter. <[1]>  However, in the Jarvis case the majority (6 of 9) of judges in the Supreme Court of Canada (“SCC”) held it was appropriate to apply section 8 case law interpreting this expression to a prosecution for voyeurism [Criminal Code of Canada s. 162(1)] <[2]>.  However, the minority (3), while concurring on the verdict, held that section 8 jurisprudence should NOT inform the interpretation of s. 162(1) for reasons explained below.

Bear in mind that the purpose of section 8 is to protect individuals’ privacy interests from state intrusions; whereas one purpose of s. 162(1) is to protect individuals’ privacy interests from intrusion by other individuals.  Nonetheless, the SCC felt that section 8 cases would be useful in resolving the question raised in the Jarvis case, namely, “what circumstances give rise to a reasonable expectation of privacy?”

In R. v. Jarvis <[3]>, the accused was a high school teacher who, using a pen camera, made surreptitious video recordings of female high school students engaging in ordinary school-related activities in common areas of the school.  The breasts and upper bodies of the female students were the focus of the video recordings.  The female students were not aware they were being recorded and did not consent to the recordings.  The school board policy prohibited the accused’s conduct.

Jarvis was charged with voyeurism.  At trial, Jarvis admitted that he made the video recordings surreptitiously (i.e., covertly), but the prosecution still had to prove the other two elements of the offence:  (1) whether the recorded students were in circumstances that give rise to a reasonable expectation of privacy and (2) whether the recordings were made for a sexual purpose. Jarvis was acquitted because the trial judge was NOT satisfied that the recordings were made for a sexual purpose.

On appeal the Ontario Court of Appeal (“OCA”) unanimously concluded that the trial judge erred in law in failing to find that the accused made the recordings for a sexual purpose.  However, in a split decision, the OCA also found that the trial judge erred in finding that the students were in circumstances that give rise to a reasonable expectation of privacy.  That issue was the basis of the appeal to SCC.

The SCC in finding Jarvis guilty held that “there can be no doubt in the case at bar that the students recorded by Mr. Jarvis were in circumstances in which they would reasonable have expected not to be the subject of videos predominantly focuses on their bodies, particularly their breasts — and a fortiori not to be the subject of such videos recorded for a sexual purpose by a teacher.”  The SCC therefore concluded that the students recorded by Mr. Jarvis were in circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code.

Before reaching this conclusion, the SCC had to first consider what it means for a person who is observed or recorded to be in “circumstances that give rise to a reasonable expectation of privacy as that expression is used in s. 162(1).”

The SCC held that “circumstances that give rise to a reasonable expectation of privacy” for the purposes of s. 162(1) 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.  The inquiry into whether a person who was observed or recorded was in such circumstances should take into account the entire conduct in which the impugned observation or recording took place.”

In determining whether a person who was observed or recorded was in circumstances that give rise to a reasonable expectation of privacy, a Court should consider the following non-exhaustive list:

(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.

The SCC was careful to caution that “[N]ot 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.”

The SCC held that persons CAN HAVE an expectation of privacy when they know they can be observed by others or when they are in a place from which they cannot exclude others, such as a “public” place.

The SCC ruled that “’privacy’ as ordinarily understood, is not an all-or-nothing concept. So, being in a public or semi-public space does not automatically deny all expectations of privacy with respect to observation or recording.

Whether observation or recording is regarded as an invasion of privacy depends on a variety of factors, such as:
“the person’s location;
the form of the alleged invasion of privacy, (i.e., whether it involves observation or recording);
the nature of the observation or recording;
the activity in which a person is engaged when observed or recorded; and
the part of a person’s body that is the focus of the recording.”

The SCC concluded that the word “circumstances,” in the sense in which it is used in s. 162(1), connotes a range of factors or considerations — which are not limited to a person’s location or physical surroundings.

As stated above, three judges of the SCC (the “minority”) held that section 8 jurisprudence should NOT inform the interpretation of s. 162(1) for the following reasons:

1. The conceptual framework for defining Charter rights should remain distinct from that used to define the scope of Criminal Code.
2. The purpose and function of s. 8 and s. 162(1) are fundamentally at odds. The power imbalance of the police as agents of the state vis-à-vis a citizen that is at the heart of the preoccupation under s. 8 is not present under s. 162(1), as that provision protects invasions of privacy perpetrated by one individual against another.
3. The interests protected by s. 8 of the Charter include personal privacy, territorial privacy and informational privacy, whereas the reasonable expectation of privacy under s. 162(1) relates only to protection of one’s physical image.
4. Charter values are a legitimate interpretive aid only in cases of ambiguity, and in this case, s. 162(1) is not legally ambiguous.

The minority held that because voyeurism is a sexual offence, “privacy” should be interpreted with regard to personal autonomy and sexual integrity.  In the Jarvis case, the minority concluded that the students had a (subjective) reasonable expectation of privacy and the videos of their clothed breasts infringed their autonomy.  The recordings were also objectively sexual in nature as the recordings focused on the young women’s intimate body parts, at close range.  So, the recordings infringed their sexual integrity.

No doubt this case will be the subject of much comment and will be cited repeatedly in cases involving the reasonable expectation of privacy.

[1].  Section 8 reads: “Everyone has the right to be secure against unreasonable search or seizure.”

[2].  Section 162 (1) states: “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.”

[3].  2019 SCC 10 (Appeal Heard: April 20, 2018, Judgment Rendered:  February 14, 2019).  All quotes are from this case.