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A Contextual Test for Privacy

  • March 16, 2019
  • Clayton Rice, K.C.

On February 14, 2019, the Supreme Court of Canada released the split 6-3 unanimous ruling in R v Jarvis, 2019 SCC 10 in which a high school teacher had been acquitted of voyeurism for surreptitiously using a pen camera to make recordings of female students’ cleavage in school hallways. The question before the court was whether the recordings were made in circumstances that violated a reasonable expectation of privacy.

In reversing the Ontario Court of Appeal and substituting a conviction, Chief Justice Richard Wagner, writing for the majority, at para 59, drew upon the jurisprudence developed under s 8 of the Charter of Rights and the “rich body of judicial thought” on the meaning of privacy in Canadian society. It was the reliance on constitutional principles that divided the court. Writing for the minority, at para 93, Justice Malcolm Rowe was of the view that “[c]ourts should not expand criminal liability by reference to Charter jurisprudence.”

1. Introduction

The voyeurism offence is defined in s 162(1) of the Criminal Code to include observing or making a visual recording of a person “in circumstances that give rise to a reasonable expectation of privacy” if the observation or recording is “done for a sexual purpose”. What impact should location have on the reasonableness of a privacy expectation? Should it make a difference that the recordings were made in a public space? These are questions that I have considered previously in other posts. (See e.g., On The Wire. Privacy In Public Places. September 14, 2015)

Chief Justice Wagner, in a nuanced and contextual analysis, developed a non-exhaustive list of considerations, at para 29, that bear on the inquiry into reasonableness. Here they are:

  1. the location the person was in when observed or recorded;
  2. the nature of the 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;
  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.

The location where an observation or recording is made – first on the list – is often called territorial privacy. It will be the focus of my comments in this post. A broader analysis of the ruling has been undertaken by other commentators. (See: Teresa Scassa. A contextual approach to the reasonable expectation of privacy: The Supreme Court of Canada’s decision in R. v. Jarvis. Teresa Scassa Blog. February 15, 2019; and, David Fraser. Supreme Court of Canada lays down a very nuanced, contextual understanding of “expectation of privacy”. Canadian Privacy Law Blog. February 14, 2019)

2. Trial

On November 10, 2015, Justice A.J. Goodman released the Reasons for Judgment at trial reported as R v Jarvis, 2015 ONSC 6813. Justice Goodman concluded, at paras 47-8, that the students had a reasonable expectation of privacy although they were also being recorded by security cameras in the school. “While the individual’s expectation is certainly lower,” Justice Goodman held, “the students’ spacial integrity in or about the school was impacted in a most surreptitious manner.”

However, Justice Goodman was left with a reasonable doubt whether Jarvis made the recordings for a sexual purpose, at para 77: “While a conclusion that the accused was photographing the student’s cleavage for a sexual purpose is most likely, there may be other inferences to be drawn that detract from the only rational conclusion required to ground a conviction for voyeurism.” Justice Goodman did not, however, suggest what the other rational inferences might be. The Crown appealed.

3. Appeal

On October 12, 2017, the Ontario Court of Appeal released its 2-1 ruling reported as R v Jarvis, 2017 ONCA 778. Justice Kathryn Feldman, with Justice David Watt concurring, held that the trial judge erred in failing to find that the defendant made the recordings for a sexual purpose. Justice Feldman concluded, at paras 46 and 53, that this was “an overwhelming case of videos focused on young women’s breasts and cleavage” and no inference other than one of “sexual purpose” was “available on this record”. However, Justice Feldman went on to conclude that the students did not have a reasonable expectation of privacy and affirmed Jarvis’ acquittal, at para 104:

“[T]he areas of the school where students congregate and where classes are conducted are not areas where people have any expectation that they will not be observed or watched. While access to school property is often restricted, access is granted to students, teachers, other staff, and designated visitors. Those who are granted access are not prohibited from looking at anyone in the public areas. Here there were security cameras in many locations inside and outside the school. No one believed they were not being observed and recorded.”

Justice Feldman certainly agreed, at para 105, that students expect not to be secretly observed or recorded by teachers. But that expectation arises from “the relationship between students and teachers” and not from an expectation of privacy. The analysis, however, did not end there. Justice Feldman continued, at para 108, to reach this startling conclusion: “If a person is in a public place, fully clothed and not engaged in toileting or sexual activity, they will normally not be in circumstances that give rise to a reasonable expectation of privacy.”

In dissent, Justice Grant Huscroft was of the view that a reasonable expectation of privacy should not depend on a person’s location and ability to exclude others from that location. Justice Huscroft emphasized, at paras 128 and 135, that the reasonable expectation of privacy is a “normative rather than a descriptive or predictive concept”. Location is a relevant consideration but not determinative. The Crown appealed again.

4. Public Spaces

In the majority opinion in the Supreme Court of Canada, Chief Justice Wagner emphasized the principle, embedded in s 8 of the Charter, that privacy is not an all-or-nothing concept. Simply because a person is in a public space, where complete privacy is not expected, does not mean that all privacy is forfeited. Observation by others, including by strangers, does not in itself mean that all reasonable expectations of privacy are waived in relation to observation or visual recording. Chief Justice Wagner put it this way, at para 62:

“An example of this broader principle that is recognized in the jurisprudence is that the intrusion into our privacy that occurs when a person hears our words or observes us in passing is fundamentally different than the intrusion that occurs when the same person simultaneously makes a permanent recording of us and our activities […] A visual recording may be able to capture a level of detail that the human eye cannot. A visual recording can also capture this detail in a permanent form that can be accessed, edited, manipulated and studied by the person who created the recording and that can be shared with others […].”

The heart of the analysis here is this. A person does not lose a reasonable expectation of privacy because he or she is in a place where observations may be made by others who cannot be excluded. Chief Justice Wagner gives us these examples, at para 40: “[A] person lying on a blanket in a public park would expect to be observed by other users of the park or to be captured incidentally in the background of other park-goers’ photographs, but would retain an expectation that no one would use a telephoto lens to take photos up her skirt […]. The use of a cell phone to capture upskirt images of women on public transit, the use of a drone to take high-resolution photographs of unsuspecting sunbathers at a public swimming pool, and the surreptitious video recording of a woman breastfeeding in a quiet corner of a coffee shop would all raise similar privacy concerns.”

The drone example is striking in the context of new and evolving technologies that must be considered in assessing whether privacy rights are violated. Chief Justice Wagner recognized, at para 63, that while evolving technologies make it easier for state agents or private individuals to “glean, store and disseminate information” about us – this does not mean that privacy rights will correspondingly shrink.

5. Conclusion

The majority opinion in Jarvis on the issue of “location” has deep roots in Canadian constitutional law going at least as far back as R v Duarte, [1990] 1 SCR 30, R v Wong, [1990] 3 SCR 36 and R v Wise, [1992] 1 SCR 527. Although all three cases involved agents of the state, and not private actors, they are equally instructive in assessing violations of privacy interests by non-state actors in the private sector. These cases all recognize the potential for electronic surveillance to annihilate privacy, individual autonomy and the organization of a free society. (See also: R v Rudiger, 2011 BCSC 1397 per Voith J, at para 110)

In Duarte, the one-party consent wiretap case, Justice Gerald La Forest emphasized, at para 21, that the rationale for regulating the power of the state to record our private communications is not rooted in the risk that others may repeat our words but in the “much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words.” In Wong, the hotel room surveillance case, Justice Antonio Lamer held in a concurring majority opinion, at para 48, that the nature of the place is an important factor in determining whether a reasonable expectation of privacy exists – but it is not determinative. And in Wise, the warrantless motor vehicle beeper case, Justice Gerald La Forest, in dissent but not on this point at para 81, found a “qualitative difference” between being observed driving a car on public streets and being monitored by a device that follows our every movement.

Why, then, did it take three levels of court, thirteen judges and over three years of litigation to answer the question: Did the students have a reasonable expectation of privacy that was violated when Jarvis surreptitiously recorded them? One answer is the tendency to be dismissive of privacy interests in public places – a predisposition that pervades commercial harvesting of personal data, warrantless deployment of surveillance technology by law enforcement, the unregulated proliferation of CCTV cameras in the private sector and, far too often, in rulings by the Canadian judiciary. Professor Scassa suggested, in the post I cited above, that the majority opinion will likely be welcomed by privacy hawks who are concerned about lower court rulings that there is no reasonable expectation of privacy in public places. “In a society in which public space is increasingly penetrated by technology that permits surveillance and recording,” she wrote, “a contextual approach to privacy is far more useful than any distinction based on concepts of private and public space.”

Will the contextual approach, then, save jurists from falling through the rug over this trap door – a reduced expectation of privacy means none at all? We’ll see.

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