A Reasonable Expectation of Privacy and the Criminal Code: Two Cases and a Sliding Scale

As a society, we place enormous value on our section 8 Charter privacy right which protects us from unreasonable privacy infringements. Despite this, we are constantly surrounded by cameras nearly everywhere we go- from supermarkets, to schools, to the roads. Although we are a far cry from an Orwellian society where “Big Brother is always watching”, a line still exists that, when crossed (usually criminally), it’s left for the Court to determine whether our privacy right guaranteed under the Charter was infringed.

In the recent case of R v Jarvis, the accused, a teacher in London, Ontario, used a video pen to record his female students’ cleavage and chest areas without their knowledge or consent. Mr. Jarvis was charged with voyeurism under the relatively new s 162(1)(c) of the Criminal Code which reads:

162(1)

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.

Since there was no question that Mr. Jarvis made videos of his students for sexual purposes, the main question before the Supreme Court was whether the students recorded by Mr. Jarvis were in circumstances that would give rise to a reasonable expectation of privacy.

In reviewing the facts of the case, the Court decided to take an expansive rather than narrow reading of s 162(1) because a narrow reading would undermine Parliament’s purpose to prevent sexual exploitation- particularly that of youth.

In their ruling, the Court raised several legal principles regarding privacy. First, in determining whether a person can reasonably expect privacy in a situation requires a contextual analysis. Secondly, privacy is not an all or nothing concept. Finally, they held that just because you know that you are observed, it doesn’t mean that you give up your privacy rights- something that’s especially pertinent in today’s society where cameras are virtually everywhere.

Writing for the majority, Justice Wagner of the Supreme Court held that “in determining whether a person who is observed or recorded was in circumstances that give rise to a reasonable expectation privacy is whether that person was in circumstances in which she would reasonably have expected not to be the subject of the observation at issue”.[if !supportFootnotes][1][endif] To illustrate this, they gave the example of a woman in a washroom and a person in a public park. Whilst a woman in a public washroom should expect a high degree of privacy (i.e. no video recordings), a person lying on a blanket in a public park should expect a lesser degree of privacy. In their application of the test, the Court looked at contextual factors, apprised of s.8 Charter values, to determine whether the students recorded by Mr. Jarvis had a reasonable expectation of privacy including:

[if !supportLists](1) [endif]Location where Mr. Jarvis made the recordings

[if !supportLists](2) [endif]What he recorded

[if !supportLists](3) [endif]Consent (or lack thereof) of the students recorded

[if !supportLists](4) [endif]How Mr. Jarvis made the recordings

[if !supportLists](5) [endif]Who and what Mr. Jarvis recorded

[if !supportLists](6) [endif]Rules that regulated or prevented Mr. Jarvis from recording

[if !supportLists](7) [endif]Relationship between Mr. Jarvis and those recorded

[if !supportLists](8) [endif]The purpose of Mr Jarvis’ recording

[if !supportLists](9) [endif]Personal attributes of the students recorded

The Court first looked at location and ruled that a school isn’t a public nor a private place, but rather a quasi-public place where entry is limited to certain people including teachers, students and other employees. While the Court found that students should have lowered expectations of privacy in areas like hallways where there are lots of students, they also found that there were school board rules governing recordings like those made by Mr. Jarvis- which should have given the students some expectation of privacy. Secondly, the Court found that the students didn’t consent to the recordings and were recorded using hidden camera technology. Finally, the sexual subject of the videos and the societal view that sexual body parts should be afforded high levels of privacy. Ultimately, these contextual factors (alongside other contextual factors) resulted in the Court ruling that Mr. Jarvis’ actions were indeed an infringement of the students’ reasonable expectation of privacy.

The Court’s definition of a “reasonable expectation of privacy” in R v Jarvis starkly contrasts cases like R v Le where I believe the Ontario Courts gave the phrase a “reasonable expectation of privacy” an arguably different meaning. The facts of Le are quite simple: a young man named Tom Le was in his friend’s backyard when several police officers entered the backyard on the premise that they wished to speak with the occupant of the house. Le had a bag with him that contained drugs, money and a weapon. The police didn’t like how Le handled his bag and questioned him about it… and Le made a run for it. Le was ultimately charged with ten criminal offences which were upheld both at the Ontario Superior Court of Justice and Ontario Court of Appeal.

In their ruling, the Court of Appeal found that the police were unlawfully on Le’s friend’s property. They then applied a similar test to Jarvis and looked at whether Le had a reasonable expectation of privacy in his friend’s backyard. Unlike Jarvis however, the Court ruled that Le had no reasonable expectation of privacy in the backyard because he didn’t control who came and went. If the same reasoning was applied to Jarvis, it’s likely that the students wouldn’t be found to have had a reasonable expectation of privacy because they didn’t control the comings and goings of people in the school. While it’s beyond dispute that the manner in which both Le and the students of Jarvis were observed was unlawful, I believe that the context is where the distinction between these two cases arises. Whilst Le was observed by police officers who were in the course of their duties and afforded a lower “reasonable expectation of privacy”, the students in Jarvis were afforded a higher “reasonable expectation of privacy” because the case involved alarming contextual factors including the sexual nature of the videos and the special bonds formed between a teacher and his students (which in no way should be sexual).

If anything is made clear from these two cases, it’s that in light of the criminal law, what constitutes a “reasonable expectation of privacy” is truly a sliding scale which is left to the Court to decide on a case-by-case basis.

Footnote

[if !supportFootnotes][1][endif] R v Jarvis, 2019 SCC 10 at para 70, [Jarvis].

Sources

Legislation:

Criminal Code, RSC 1985, c C-46.

Jurisprudence:

R v Jarvis, 2019 SCC 10.

R v Le, 2018 ONCA 56.