- Devon Molloy (law student)
Voyeurism at the Supreme Court of Canada!
Voyeurism officially became a criminal offence in Canada when s 162 (voyeurism) was added to the Criminal Code of Canada in 2005. Since then, the Supreme Court of Canada (SCC) had not heard a case on the matter from when it was first enacted in 2005 through to the beginning of 2019. Then, in February of this year, the SCC delivered their first ruling on voyeurism in R v Jarvis – the case illuminates some of the important concerns held by the legislature and the judiciary concerning developing technologies and their relationship with personal privacy and sexual offences. While the SCC unanimously agreed that voyeurism includes a teacher secretly videotaping a student’s breasts they disagreed about how to determine where there is a reasonable expectation of privacy under the s 162 of the Criminal Code, voyeurism, laws.
Case Summary (R v Jarvis)
Ryan Jarvis was a high-school teacher in London, Ontario during the 2010-2011 period where he secretly filmed the face and cleavage areas of female students while talking to them at school. He surreptitiously used a camera that was hidden inside of his pen to hide the fact that they were being record. More than 24 videos were recovered from the pen with some as long as two-and-a-half minutes.
At trial, Jarvis was initially acquitted on a finding by the trial judge that it was unclear whether the videos of students’ cleavage areas were taken for a sexual purpose. The trial judge did however acknowledge that the students had a reasonable expectation of privacy while at school, in the classroom, walking through the halls, the cafeteria, staff offices, and while outside the building on school grounds.
On appeal from the Crown, the Ontario Court of Appeal affirmed the trial judge’s decision in aquitting Jarvis but provided different reasons for his innocence. The majority judgment reversed the finding by the trial judge and ruled that the videos of students’ cleavage areas were in fact taken for a sexual purpose. However, the majority of the court also reversed the trial judges finding that students have a reasonable expectation of privacy at while at school – the court reasoned that students should not have an expectation of privacy in public areas of the school such as the classroom or cafeteria.
On another appeal from the Crown, the SCC came to a unified ruling, on the determination of Jarvis’ innocence, wherein all nine Supreme Court justices found him guilty of voyeurism under s 162 of the Criminal Code of Canada – the opposite conclusion of both the trial judge, and the Ontario Court of Appeal. There were three key areas of agreement between the justices: that students had a reasonable expectation to privacy at school; that the videos were of a sexual nature; and agreement that s 162 of the Criminal Code (voyeurism) was passed as a proactive measure to address increasing concerns about more readily accessible, and evolving, recording technology that could be used for the invasion of privacy or sexual purposes. However, the Supreme Court justices were fractionated in their ruling on how to determine where a reasonable expectation of privacy exists, which result in two separate judgments.
Six justices formed the majority judgment which held that in order to determine whether a person had a reasonable expectation of privacy the court must consider the entire context in which the observation or recording took place. This includes: the location where the observation or recording occurred; the nature of the impugned conduct; 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. Conversely, the three justices representing the minority judgment more simply held that a reasonable expectation of privacy is infringed where the recording diminishes the subject’s ability to maintain control over their image and infringes their sexual integrity.
Comparing the Two Approaches to a Reasonable Expectation of Privacy
The approach taken by the majority to analyze whether there is a reasonable expectation of privacy in relation to a charge of voyeurism, was based on the jurisprudence surrounding s 8 of the Canadian Charter of Rights and Freedoms – which provides everyone in Canada with protections against reasonable search and seizure. S 8 enforces privacy rights (typically personal information) from unreasonable intrusion from the state and is therefore a comparable stepping stone for helping to establish grounds for enforcing privacy rights from unreasonable intrusion of other individuals. This lead to the SCC adopting an “entire context” approach where a lengthy non-exhaustive list of factors are considered to determine a reasonable expectation of privacy on a case by case basis. As the first ruling on voyeurism from the SCC this is a relatively unhelpful decision for determining when to pursue a legal action because it effectively means the courts should consider each case in isolation of their own unique factors and that judges should make instinctive decisions based on those factors.
In contrast, the approach taken by the minority is based on the principle that Charter values are only an interpretive aid in cases of ambiguity and that the definition of a reasonable expectation of privacy is clearly interpretable from the language used in s 162 of the Criminal Code. The first part of the test, “control over their image”, references who was in charge of the situation, and the second part of the minority’s test “infringes their sexual integrity” is taken from the sexual nature of the behaviour describe in s 162 (1) (a-c) of the Criminal Code. What the minority provides is a simple, clear, and effective two-part test for making a determination as to whether there is a reasonable expectation of privacy. This makes sense because the brunt of the analysis should be in determining whether the recordings were of a sexual nature as the purpose of the voyeurism legislation was to protect against sexual recordings with concern for developing filming technology.
The Balance between Privacy and Technology in 2019
It was George Orwell who first wrote that “Big Brother is watching you”, in reference to a slippery slope of government supervision which could lead to extremes such as a police state. While that may very well have been a legitimate concern in 1984 when he wrote the quote, in 2019 it is not just “Big Brother” that people should be worried about, rather, an equally daunting concern is rising wherein everyone and their dog either owns a spy drone or has easy enough access to obtain one within a 24-hour period. Beyond drones, for less than $100, Canadians can obtain a host of recording devices from a home-security sets to cameras embedded in everyday appliances.
With such easy access to recording technologies there is reasonable growing concern that privacy is being more and more impeded and may soon face extinction. One issue with enforcing privacy is that it can be difficult to mount a legal action action for breach of privacy where drone are used to commit the breach. The first issue with starting a lawsuit is that one may not know who is controlling the drone and there who to sue; second, not everyone has the tens of thousands of dollars it costs to complete a claim; and finally, by the time an action is completed years of breach of privacy by drone may have occurred. A fourth concern with other types of hidden cameras is that individuals are not even likely to know that they are being recorded and their privacy has been breached.
Because of these difficulties presented by developing technology that makes recording devices smaller, more powerful, and easier to hide the user’s identity the law must respond by encouraging more stringent police investigations and more frequent prosecutions when perpetrators are caught. Finally, to balance the pendulum swaying towards elimination of privacy, the law should favour a conviction of breach of privacy as a policy reason for deterring future breaches of privacy.
R v Jarvis is a clear example of a case where it has taken years to convict someone who had concealed a camera and secretly made sexual recordings; these recordings were also taken by an individual in a place of power, a teacher, that misused their special relationship and responsibility of care over their students to videotape them. Even in light of these extreme facts it still took two appeals to for the courts to find a conviction against Jarvis at the SCC as the two lower level courts refused to find him guilty. Not only should cases like this be more clearly identifiable as voyeurism in breach of privacy of a sexual nature but they should also not be centrally argued on whether or not a reasonable expectation of privacy can be found as the dwindling right to privacy should be more strictly protected.
A Proposed Solution to Reforming a Reasonable Expectation of Privacy
I would propose that the solution for protection the right to privacy would be for courts to reverse their approach and adopt an assumption that there is always a reasonable expectation of privacy: This assumption would be accompanied by two defences unique to cases of privacy where first, if the breach of privacy is committed by the one in possession of the property, or an agent acting on behalf of the individual in possession, for security purposes, then they may legally engage in a breach of privacy; and second, if the recorded individual provided consent then it is permissible.
The initial assumption provides the greatest protection of privacy by stipulating that there is a positive assumption that an expectation of privacy exists whether on public, private, or other types of property. The defences then function to protect individuals who wish to make consensual recordings or should have a right to make recordings for the sake of protection and security from being wrongfully sued or convicted of an offence. The first defence, security recordings, allowing property holders and agents to lawfully make recordings to protect people or property – these would include, for example, security cameras, and police investigation/interrogation recordings. The second defence protects individuals who had consent to take the stipulated recording and this would range from contractual agreements to friends who have requested a picture.
The approach of this legislation would be to effectively hold that there are only two scenarios in which society finds it permissible to make a recording: (1) for security and safety purposes, and (2) where the recording is consensual.
In practice, people could still have security cameras at their homes or businesses, and friends could still take pictures of one another or their children. The major difference in our legal framework and the cases coming before the court would be in that people could not take pictures of others who have not given consent at the beach, or a party, or record footage of a sporting game to which not all players agreed to be filmed.
The positive effect would be that anytime a non-security/safety secret recording device was found there would be an immediate source for a charge or lawsuit because this behaviour is intolerable in society and would not be consensual. While there would be cases that would be illegal wherein parents harmlessly took pictures of a sporting game when there kids were playing these cases would rarely come to court as they would not be worth the time or money to pursue. Contrarily, if the cases are often brought before the court it would show that the law is well-supported by society and that it is good it was enacted.
R v Jarvis –
S 162 of the Criminal Code of Canada (Voyeurism) –
S 8 of the Canadian Charter of Rights and Freedoms –