By Suzie Dunn
The Supreme Court of Canada is set to release its decision on a much anticipated case addressing privacy, equality and sexual violence this Thursday, February 14, 2019.
On the day of its release, the University of Ottawa’s Faculty of Law will host a discussion on the decision at 4:00 pm in Room 570, Fauteux Hall, 57 Louis-Pasteur Private. All are welcome to attend.
On April 20, 2018 the Supreme Court heard R v Jarvis, (SCC file number 37833) a voyeurism case where a high school teacher used a pen cam to surreptitiously record multiple videos focused mainly of the chest and cleavage area of several female students and one female colleague.
Jarvis was acquitted at trial. The Court of Appeal upheld that acquittal in R v Jarvis, 2017 ONCA 778, finding that while the photos were taken for a sexual purpose, the young women he targeted did not have a reasonable expectation of privacy in the school setting where the photos were taken, an essential element of the voyeurism offence.
The central question before the Supreme Court was when do people have a reasonable expectation of privacy? Is it only when they are shielded from public view? When they are dressed modestly? Or can privacy be understood in a more nuanced way?
CIPPIC intervened in the case and was represented by the University of Ottawa’s Professor Jane Bailey, who is also the co-lead of The eQuality Project, and CIPPIC’s Director, David Fewer. You can listen to CIPPIC’s oral arguments presented to the Supreme Court by Professor Bailey (starting at 57:00) here.
CIPPIC argued that the Court should use a contextual and normative approach to interpreting the reasonable expectation of privacy, one that considers the totality of the circumstances surrounding the recording. Location is one factor the courts should consider in making the privacy determination, but a person should not lose all of their privacy rights for merely appearing in public or wearing revealing clothing in semi-public places.
Rather than focusing on a public/private divide to determine privacy rights in relation to voyeurism, CIPPIC argued that the Court should instead assess the complainants’ privacy rights based on a number of factors, such as the relationship between the parties, the norms of the place where the image was taken, what effort was taken to conceal the fact that a picture was being taken, and what the accused was attempting to capture when making the recording.
When assessing a range of factors, CIPPIC argued that the courts should also take into account the equality interests relevant to the case, and consider how the recordings affect the complainant’s bodily and sexual integrity and autonomy, as well as its effect on the equality rights of women and girls to fully and freely participate in public life.
The Supreme Court’s decision in Jarvis will impact all people’s rights to be free from unwanted sexualized recordings, but will especially affect the rights of groups that are more likely to be subjected to sexual violence, including girls and women, and members of the LGBTQ++ community – particularly those also targeted by racism, colonialism and other forms of systemic oppression.
R v Jarvis: Cyberviolence against women – can criminal law respond? By Jane Bailey and Carissima Mathen
Decision under appeal R v Jarvis, 2017 ONCA 778
Technologically-facilitated violence against women and girls: If criminal law can respond, should it? By Jane Bailey and Carissima Mathen
CIPPIC’s Factum (SCC, April 20, 2018)
R v Jarvis – Location, Equality, Technology: What is the Future of Privacy? By Kristen Thomasen and Suzie Dunn