By Jane Bailey, David Fewer, and Suzie Dunn
The Supreme Court of Canada released its decision on R v Jarvis on February 14, 2019. Ryan Jarvis was a high school teacher in London Ontario who was charged with voyeurism after being caught using a camera pen to secretly take multiple videos of several female students’ breast and chest areas while talking with them in the school and on the school grounds. The section of the offence Jarvis was charged with required that the recording be taken surreptitiously, made in a situation where the target had a reasonable expectation of privacy, and done for a sexual purpose. Jarvis admitted that the images were taken surreptitiously in an agreed statement of facts. At trial Jarvis was acquitted because the court could not determine beyond a reasonable doubt that the recording was done for a sexual purpose, but did find that the girls had a reasonable expectation of privacy. On appeal, Jarvis was also acquitted. Although the Court of Appeal found that the images were taken for a sexual purpose, it held that the young women did not have a reasonable expectation of privacy. On further appeal the Supreme Court of Canada unanimously convicted Jarvis of voyeurism, although two sets of reasons were delivered: one by six judges (majority) and one by three judges (concurring). The majority reasons outline a framework for deciding when a person has a reasonable expectation of privacy and, like the concurring reasons ultimately conclude that the young women in this situation did have a reasonable expectation of privacy.
Below we discuss the Supreme Court’s decision, which we found to be both beneficially normative and not technologically deterministic, although the Court missed an important opportunity to address the equality issues at play in cases of sexualized violence like voyeurism.
The problems with the majority decision of the Court of Appeal for Ontario serve to heighten the significance of the Supreme Court’s approach to “reasonable expectation of privacy”. In the Court of Appeal, the majority decision relied on a partial dictionary definition of “privacy” as “a state in which one is not observed or disturbed by other people; the state of being free from public attention” (para 93). From this the majority fixed the complainant’s reasonable expectation of privacy to location: “A person expects privacy in places where the person can exclude others, such as one’s home or office, or a washroom. It is a place where a person feels confident that they are not being observed” (para 94). On this interpretation, one cannot enjoy a reasonable expectation of privacy when in public or otherwise in a place where one might be observed by others.
The Supreme Court majority decision rejected this approach out of hand. It described privacy as fostering “dignity, integrity and autonomy in our society”, drawing a direct and “palpable” connection between personal privacy and human dignity (para 65). The crucial role privacy plays in Canadian society is incompatible with a view of privacy tied to location or determined by an “all or nothing” approach. Instead, the majority ruled that the inquiry into a reasonable expectation of privacy 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 (para 30). The majority expressly rejected the “all-or-nothing” approach to privacy, stating: “simply because a person is in circumstances where she does not expect complete privacy does not mean that she waives all reasonable expectations of privacy” (para 61). And the majority embraced the normative conception of privacy over a risk-based assessment of privacy: a person may reasonably expect privacy where the norms of conduct in our society suggest one ought to expect privacy, and the reasonableness of that expectation cannot be undermined merely because of a risk of observation (para 68).
For the majority, the determination of whether a person was in “circumstances that give rise to a reasonable expectation of privacy” should be guided by a non-exhaustive list of contextual considerations. Writing for the majority, the Chief Justice listed the following considerations (at para 29):
(1) the location the person was in when she was observed or recorded;
(2) the nature of the impugned 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 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; and
(9) the personal attributes of the person who was observed or recorded.
The Chief Justice cautioned that not all of these factors will be relevant to every case, and that some situations may introduce other factors relevant to a determination of a reasonable expectation of privacy.
This normative, contextual and non-risk-based approach to a reasonable expectation of privacy avoids the troubling approach to public space that informs the decision of the Court of Appeal majority. Location and observation, though relevant to a determination of expectations of privacy, are just some among many factors. The Chief Justice was at pains to emphasize that people do not lose their expectation of privacy merely because they are in public: “being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observations or recording” (at para 41).
On the facts of the case, the Supreme Court majority easily concluded that Jarvis had recorded his students and a colleague in circumstances in which they enjoyed a reasonable expectation of privacy: “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” (at para 90). The Chief Justice concluded with a suggestion that the voyeurism provisions of the Criminal Code have potential to address a range of conduct that targets women and girls with sexualized surveillance and monitoring (at para 90):
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.
Privacy expectations should not be primarily determined by the development, use, and implementation of recording technology. While advancements in technology will inevitably have some impacts on privacy norms, the mere existence of this technology should not automatically lead to a significant erosion of privacy rights. In Jarvis, the influence of technology on individual privacy rights was a central consideration before the courts. Unlike the Court of Appeal’s decision, the Supreme Court’s conclusion on this issue established a fairly well-balanced assessment of the impact of technology on privacy.
The Court of Appeal majority adopted an all-or-nothing approach to privacy, observing that students could hold no reasonable expectation of privacy since they were already surveilled in a school environment for security purposes. Much of the Court of Appeal majority’s analysis centred on the fact that the girls who were surreptitiously recorded by their teacher were also being filmed by the school’s CCTV security cameras at the same time. As such, the Court of Appeal majority stated: “[n]o one believed they were not being observed and recorded” (para 104) and found that students who were engaging in normal school activities, while in view of other people and security cameras, did not have a reasonable expectation of privacy that would protect them from being secretly recorded by their teacher for sexual purposes. This technologically deterministic decision was problematic as it seemed to strip individuals of their privacy rights and right to bodily autonomy whenever they were in public places where security cameras were recording them. This approach suggests privacy rights are dictated by the technology that exist in the environment we are in. But today our cities are smart, our homes are smart, and we regularly carry what amount to surveillance devices in our pockets. Taken together, this suggests that on the approach of the Court of Appeal majority, a socially engaged and technology-filled life attracts few reasonable expectations of privacy.
The Supreme Court of Canada disagreed with this view and addressed the fundamental differences between being incidentally filmed for security purposes or being captured in the background of someone’s cell phone video, and being surreptitiously recorded with a hidden camera for voyeuristic purposes. It recognized that while the technology exists to regularly record individuals, and people are often incidentally captured by recording technology while in public, that does not mean they lose all privacy rights when in the presence of that technology. The ubiquity of increasingly invasive recording technology does not and should not dictate individual’s privacy rights. The Supreme Court majority noted that while people reasonably expect that they may be captured in the background of a parent filming their child’s sports game while out in public, they also reasonably expect to be free from being secretly recorded for sexual purposes using a hidden camera (para 89-90).
In addition, the Supreme Court majority recognized another technological impact on privacy: once an image has been captured by a voyeur, technology allows for increased violations of privacy. It acknowledged that permanent recordings for a sexual purpose are different than observations. Recorded images can be accessed repeatedly, manipulated to change the content of the image, and shared with others. Once the image is taken, the voyeur’s target is burdened with the knowledge that their image may be used, edited and disseminated by an abusive perpetrator. It may be impossible to fully retrieve all copies of the image once it has been captured. This alters the privacy harms experienced, especially when compared to observation, as the harm can be both prolonged and amplified (para 62).
The Court’s nuanced approach to the relationship between technology and privacy provides an important precedent for privacy violations between individuals and comes in line with previously established privacy jurisprudence in other contexts. It will prove useful as both privacy norms and technology evolve.
Equality: A gap in the decision
The majority decision represents an important win for privacy. Perhaps most importantly, after 8 years of litigation, a Canadian court has finally conveyed to the young women targeted by Jarvis that what he did to them was wrong. That declaration is also particularly significant for all girls and women because they are disproportionately likely to be targeted by voyeurism and other forms of sexual violence.
As intervenors before the Supreme Court of Canada, we, at CIPPIC, along with the Women’s Legal Education and Action Fund (LEAF) invited the Court to explicitly acknowledge the equality issues at play, arguing that equality was relevant in at least three ways. First, voyeurism itself undermines equality by disproportionately targeting women and girls with sexualized surveillance and monitoring that interferes with their free and equal participation in society, including girls’ and young women’s right to equal access to education when it happens in schools. Second, the Court of Appeal majority’s all-or-nothing interpretation of a complainant’s privacy expectations in the context of this highly gendered crime, itself undermined women’s and girls’ equality rights. The risk-based, a-contextual, non-Charter informed approach to privacy meted out to disproportionately-female voyeurism complainants by the Court of Appeal majority stood in sharp and unequal contrast with the robust, contextual, non-risk based version of privacy well-established in the s. 8 jurisprudence. The Court of Appeal majority’s adoption of a thin, location-based standard essentially created an inferior version of privacy for women, one that harkened back to myths and stereotypes in which “respectable” women remained chaste, modest and out of the public eye, and were blamed for failing to prevent the sexual violence perpetrated against them. Third, the Court of Appeal majority’s interpretation ran counter to the underlying Parliamentary objective of the voyeurism provision: enhancing women’s and children’s equality by criminalizing a form of surreptitious sexualized surveillance more likely to be targeted at them.
Notwithstanding these submissions, the Supreme Court of Canada chose not to explicitly acknowledge either the gendered nature of the crime of voyeurism or the equality issues at play. In fact, neither the word “equality” nor the word “gender” appears anywhere in either the majority or concurring reasons. Perhaps the Court implicitly acknowledged the equality stakes in the case by clearly rejecting the Court of Appeal majority’s anemic, a-contextual interpretation of complainants’ privacy expectations? Or by, in the case of the majority reasons, consistently using the pronouns “she” and “elle” when describing complainants (e.g. “the location the person was in when she was recorded”)? Or by, in the case of the concurring reasons, adopting the “sexual integrity” framework proposed by Professor Elaine Craig? Perhaps we’ll never know.
What we do know is that, in substance, the Supreme Court’s privacy analysis in Jarvis avoids the equality-related pitfalls underlying the Court of Appeal majority’s approach. In that way, it is a win for equality too. Still, in the absence of an explicit acknowledgment of privacy’s connection to equality in this context, the burden of drawing attention to that connection in future cases remains firmly on the shoulders of equality-seeking communities. That burden seems certain to grow as we venture ever-deeper into a digitized existence in which emerging technologies enable increasingly non-transparent forms of data collection about us and discrimination against us. The Supreme Court of Canada had the opportunity to lighten that burden by expressly recognizing the privacy/equality connection that is becoming readily apparent in our digitally-connected world. Unfortunately, it chose not to do so.
In the end, the Supreme Court’s decision provided much needed clarity about when the law will recognize the right to expect privacy while in public spaces. Its rejection of a location-focused, all-or-nothing, and risk-based approach to privacy is a welcome decision for both privacy and equality advocates. Despite the Court’s disappointing decision not to explicitly recognize the equality issues raised by CIPPIC and LEAF, in practice this decision will serve to better protect the privacy rights of the women and girls who are disproportionately targeted by voyeurism offences. Its contextual analysis of individual privacy rights avoids blaming complainants for their victimization because they choose to appear in public or be in the presence of recording technology. This decision allows the courts to assess privacy rights in the context of a technology-filled reality where people can reasonably expect to be free from unwanted, invasive sexual recordings whether in public or in private.