Supreme Cpourt rules teacher's secret videos of students breach privacy, constitute criminal voyeurism.
Thursday, February 14, 2019 - Filed in: Court Cases
"The accused was an English teacher at a high school. He used a camera concealed inside a pen to make surreptitious video recordings of female students while they were engaged in ordinary school-related activities in common areas of the school. Most of the videos focused on the faces, upper bodies and breasts of female students. 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 accused was charged with voyeurism under s. 162(1) (c) of the Criminal Code. That offence is committed where a person surreptitiously observes or makes a visual recording of another person who is in circumstances that give rise to a reasonable expectation of privacy, if the observation or recording is done for a sexual purpose. At trial, the accused admitted he had surreptitiously made the video recordings. As a result, only two questions remained: whether the students the accused had recorded were in circumstances that give rise to a reasonable expectation of privacy, and whether the accused made the recordings for a sexual purpose. While the trial judge answered the first question in the affirmative, he acquitted the accused because he was not satisfied that the recordings were made for a sexual purpose. The Court of Appeal unanimously concluded that the trial judge had erred in law in failing to find that the accused made the recordings for a sexual purpose. Nevertheless, a majority of the Court of Appeal upheld the accused’s acquittal on the basis that the trial judge had also erred in finding that the students were in circumstances that give rise to a reasonable expectation of privacy. The Crown appeals to the Court as of right on the issue of whether the students recorded by the accused were in circumstances that give rise to a reasonable expectation of privacy."
The S.C.C. (9:0) allowed the appeal and entered a conviction.
Chief Justice Wagner wrote as follows (at paras. 5-6, 29-31, 65, 75-76, 87-90, 92):
"...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. 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. The list of considerations that may be relevant to this inquiry is not closed. However, 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.
...there can be no doubt in the case at bar that the students recorded by Mr. Jarvis were in circumstances in which they would reasonably have expected not to be the subject of videos predominantly focused 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. I therefore conclude 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. I would allow the appeal and enter a conviction.
The following non-exhaustive list of considerations may assist a court in determining whether a person who was observed or recorded was in circumstances that give rise to a reasonable expectation of privacy:
(1) The location the person was in when she was observed or recorded. The fact that the location was one from which the person had sought to exclude all others, in which she felt confident that she was not being observed, or in which she expected to be observed only by a select group of people may inform whether there was a reasonable expectation of privacy in a particular case.
(2) The nature of the impugned conduct, that is, whether it consisted of observation or recording. Given that recording is more intrusive on privacy than mere observation, a person’s expectation regarding whether she will be observed may reasonably be different than her expectation regarding whether she will be recorded in any particular situation. The heightened impact of recording on privacy has been recognized by this Court in other contexts, as will be discussed further at para. 62 of these reasons.
(3) Awareness of or consent to potential observation or recording. I will discuss further how awareness of observation or recording may inform the reasonable expectation of privacy inquiry at para. 33 of these reasons.
(4) The manner in which the observation or recording was done. Relevant considerations may include whether the observation or recording was fleeting or sustained, whether it was aided or enhanced by technology and, if so, what type of technology was used. The potential impact of evolving technologies on privacy has been recognized by the courts, as I will discuss further at para. 63 of these reasons.
(5) The subject matter or content of the observation or recording. Relevant considerations may include whether the observation or recording targeted a specific person or persons, what activity the person who was observed or recorded was engaged in at the relevant time, and whether the focus of the observation or recording was on intimate parts of a person’s body. This Court has recognized, in other contexts, that the nature and quality of the information at issue are relevant to assessing reasonable expectations of privacy in that information. As I will discuss further at paras. 65-67 of these reasons, this principle is relevant in the present context as well.
(6) Any rules, regulations or policies that governed the observation or recording in question. However, formal rules, regulations or policies will not necessarily be determinative, and the weight they are to be accorded will vary with the context.
(7) The relationship between the person who was observed or recorded and the person who did the observing or recording. Relevant considerations may include whether the relationship was one of trust or authority and whether the observation or recording constituted a breach or abuse of the trust or authority that characterized the relationship. This circumstance is relevant because it would be reasonable for a person to expect that another person who is in a position of trust or authority toward her will not abuse this position by engaging in unconsented, unauthorized, unwanted or otherwise inappropriate observation or recording.
(8) The purpose for which the observation or recording was done. I will explain why this may be a relevant consideration at paras. 31-32 of these reasons.
(9) The personal attributes of the person who was observed or recorded. Considerations such as whether the person was a child or a young person may be relevant in some contexts.
I emphasize that the list of considerations that can reasonably inform the inquiry into whether a person who was observed or recorded had a reasonable expectation of privacy is not exhaustive. Nor will 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. In another context, however, these latter considerations may play a more significant role. The inquiry is a contextual one, and the question in each case is whether there was a reasonable expectation of privacy in the totality of the circumstances.
I pause here to note that there is nothing incongruous about considering the purpose of observation or recording in determining whether it was done in breach of a reasonable expectation of privacy. This Court has recognized, in other contexts, that a person’s reasonable expectation of privacy with respect to information about the person will vary depending on the purpose for which the information is collected: see R. v. Dyment,  2 S.C.R. 417, at pp. 429-32, per La Forest J.; Dagg v. Canada (Minister of Finance),  2 S.C.R. 403, at para. 75. This conclusion also flows from a common sense understanding of privacy expectations. For example, if a patient disrobes to allow a physician to view her breasts or other sexualized parts of her body for the purpose of receiving a medical diagnosis, the patient cannot complain that the physician has breached any reasonably held expectation of privacy by performing the diagnostic procedure. However, if the diagnostic procedure turns out to be a pretext on which the physician relies in order to view the patient for a non-medical purpose — whether sexual or otherwise — the patient’s privacy will undeniably be violated.
As this Court has recognized, our society places a high value on personal privacy — that is, privacy with respect to our bodies, including visual access to our bodies: see Tessling, at para. 21; R. v. M. (M.R.),  3 S.C.R. 393, at para. 32; R. v. Golden, 2001 SCC 83,  3 S.C.R. 679, at paras. 83, 89-90, 98-99 and 106. While all aspects of privacy — both from the state and from other individuals — serve to foster the values of dignity, integrity and autonomy in our society, the connection between personal privacy and human dignity is especially palpable: see Dyment, at pp. 427-29, per La Forest J.
The manner in which the videos were recorded — using hidden camera technology that allowed for sustained recording at close range without the subject being aware of it — is also a relevant factor in the case at bar. It undermines Mr. Jarvis’ argument that the students could not have had a reasonable expectation that he would not record them at school because they were aware that there were security cameras in various locations inside and outside the school. This argument ignores the fact that not all forms of recording are equally intrusive. In particular, there are profound differences between the effect on privacy resulting from the school’s security cameras and that resulting from Mr. Jarvis’ recordings, and the students’ expectation that they would be recorded by the school’s security cameras tells us little about their privacy expectations with respect to the recording done by Mr. Jarvis.
The security cameras at the school were mounted to the walls near the ceiling inside the building and also to the outside of the building. They did not record audio; the direction they pointed could not be manipulated by teachers; teachers could not access or copy the recorded footage for their personal use; and the purpose of the cameras was to contribute to a safe and secure learning environment for students. Signs at the school indicated that the school halls and grounds were under 24-hour camera surveillance: Agreed Statement of Facts, A.R., vol. 7, at p. 148. Given ordinary expectations regarding video surveillance in places such as schools, the students would have reasonably expected that they would be captured incidentally by security cameras in various locations at the school and that this footage of them could be viewed or reviewed by authorized persons for purposes related to safety and the protection of property. It does not follow from this that they would have reasonably expected that they would also be recorded at close range with a hidden camera, let alone by a teacher for the teacher’s purely private purposes (an issue to which I will return later in these reasons). In part due to the technology used to make them, the videos made by Mr. Jarvis are far more intrusive than casual observation, security camera surveillance or other types of observation or recording that would reasonably be expected by people in most public places, and in particular, by students in a school environment.
Reasonable adults are particularly solicitous of the privacy interests of children and young persons in relation to observation and especially visual recording. One reason for this is that reasonable adults recognize that children and young persons are often not in a position to protect their own privacy interests against intrusion. For example, children are particularly at risk with respect to unwanted recording because they have limited choice about which spaces they occupy, limited means to exclude others from those spaces, and limited choice about what parts of their bodies may be exposed in those spaces. Children are also expected to be obedient to adults and follow their instructions, and they place a high degree of trust in adults and authority figures, such as their parents and teachers. And in a situation where an adult would be alert to the potential for intrusions on her privacy as a result of observation or recording, a child may be completely unsuspecting, putting her faith in the adults around her and failing to take evasive action, even if evasive action were otherwise possible.
These considerations are applicable to our assessment of the students’ expectations of privacy in the case at bar. The fact that all of the students were young persons means that they would have reasonably expected the adults around them to be particularly cautious about not intruding on their privacy, including by not targeting them for visual recording without their permission. Therefore, the fact that all of the students recorded were young persons strengthens the argument that they could reasonably expect not to be recorded in the manner they were.
In today’s society, the ubiquity of visual recording technology and its use for a variety of purposes mean that individuals reasonably expect that they may be incidentally photographed or video recorded in many situations in day-to-day life. For example, individuals expect that they will be captured by video surveillance in certain locations, that they may be captured incidentally in the background of someone else’s photograph or video, that they may be recorded as part of a cityscape, or that they may be recorded by the news media at the scene of a developing news story. In the school context, a student would expect that she might be captured incidentally in the background of another student’s video, photographed by the yearbook photographer in a class setting, or videotaped by a teammate’s parent while playing on the rugby team.
That being said, individuals going about their day-to-day activities — whether attending school, going to work, taking public transit or engaging in leisure pursuits — also reasonably expect not to be the subject of targeted recording focused on their intimate body parts (whether clothed or unclothed) without their consent. A student attending class, walking down a school hallway or speaking to her teacher certainly expects that she will not be singled out by the teacher and made the subject of a secretive, minutes-long recording or series of recordings focusing on her body. The explicit focus of the videos on the bodies of the students recorded, including their breasts, leaves me in no doubt that the videos were made in violation of the students’ reasonable expectations of privacy. Indeed, given the content of the videos recorded by Mr. Jarvis and the fact that they were recorded without the students’ consent, I would likely have reached the same conclusion even if they had been made by a stranger on a public street rather than by a teacher at school in breach of a school policy.
It is not in issue in this Court that the Crown has established the other elements of the offence with which Mr. Jarvis was charged. Accordingly, I would allow the appeal, enter a conviction, and remit the matter for sentencing."
Note: The summary and body are drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.