2017 ONCA 778

In 2017 ONCA 778, a high school teacher, Mr. J, was charged with voyeurism after using a camera pen to surreptitiously record female students and staff. Mr. J’s pen camera emitted a red light, and a fellow teacher noticed that he often pointed it at his female students. Police later discovered that the pen contained a USB drive and was used to take video recordings. Officers found three active video files on the seized camera: one of an empty classroom, one of an adult woman (panning from her face to her breasts) and one of a teenage girl (again, panning from face to breasts several times). Forensic analysis revealed nineteen more videos, two of which were deleted. Twenty-seven of the thirty surreptitiously recorded individuals were female high school students ranging in age from 14 to 18-years-old. Although all subjects were fully clothed, a number of the recordings focused exclusively on girls’ breasts.[1] Five videos were primarily focused on the cleavage of three female students.

The key issues at trial were (i) whether the video subjects had a reasonable expectation of privacy in the circumstances, and (ii) whether the recordings were made for a sexual purpose. At the trial level the court concluded that the students had an expectation of privacy, but held that it was not satisfied beyond a reasonable doubt that the recordings were made for a sexual purpose.[2]

At the Court of Appeal, the acquittal was upheld but for different reasons.

The majority at the court of appeal held that the material was made for a sexual purpose, as no other reason or inference for their filming was raised at the trial level. The court also stated that a person does not need to be nude for the content to be sexual, stating:

[…] while nudity may certainly be relevant to an analysis of the sexual purpose of the video, the fact that the person is clothed cannot be a factor that negatives that purpose. If the person were nude, the charge could be laid under paragraph (1)(b). Because observing or visually recording for a sexual purpose is a separate offence, it is clear that it can be committed where the victims are not naked, but where the focus of the observation or videos is on sexual organs or where there are other indicia that the intent of the accused is for a sexual purpose.[3]

However, the court held that the girls did not have a reasonable expectation of privacy while they were engaged in normal school activity in public areas of the school, particularly because that school has 24-hour surveillance security cameras in and around the school, including sign-age telling students they were being recorded. The court recognized that the girls had a subjective expectation of privacy that a teacher would not surreptitiously video or audio record them. However, it stated:

In my view, as a matter of statutory interpretation, for the purpose of s. 162(1)(c), in order to give the requirement of “circumstances that give rise to a reasonable expectation of privacy” any effect where the person being surreptitiously videoed is not naked or doing a private sexual or toileting act, the person must be in circumstances, including type of place, where they expect privacy. If the fact that they are being surreptitiously recorded without their consent for a sexual purpose were enough to give rise to a reasonable expectation of privacy, that would make the privacy requirement redundant. If a person is in a public place, fully clothed and not engaged in toileting or sexual activity, they will normally not be in circumstances that give rise to a reasonable expectation of privacy.

I conclude that the trial judge erred in law by finding that the students were in circumstances that gave rise to a reasonable expectation of privacy, within the mean-ing of s. 162 of the Code, while engaging in normal school activities and interactions in the public areas of the school where there were many other students and teachers.[4]

The appeal was dismissed but is currently being appealed to the Supreme Court of Canada.

On dissent, Judge Huscroft, agreed that the videos were for a sexual purpose, but held that the girls did have a reasonable expectation of privacy. The dissent stated that privacy is normative and evaluative and not descriptive or predictive, arguing that the majority focused too much of its analysis on location and that there can be an expectation of privacy in public places.

This case was appealed to the Supreme Court of Canada, which heard arguments on April 20, 2018. The decision from the SCC has yet to be released.

Also see: 2014 ONSC 1801, 2015 ONSC 6813, [2017] SCCA No 440, currently appealed to the SCC

[1] Discussing the students’ reasonable expectation of privacy at school, the trial court noted, “It may be that a female student’s mode of attire may attract a debate about appropriate reactions of those who observe such a person leading up to whether there is unwarranted and disrespectful ogling. That being said, it is equally reasonable to expect that close-ups of female students’ cleavage or breasts will not be captured by a pen camera as a permanent record. There is no dispute that the female students had a subjective expectation of privacy”: 2015 ONSC 6813 at 46-47.
[2] 2015 ONSC 6813 at s 68-77, on the point of sexual purpose the trial court stated: The determination of whether an image or images are intended to cause sexual stimulation must be assessed on the totality of the evidence. Nudity, sexual contact or sexual posing, indicia of sexual stimulation, whether the images are associated with sexual activities, other indicia of sexuality, whether the images are a series in a collection of sexual materials or whether they have been surreptitiously taken are all relevant considerations […] There was no evidence advanced in this trial regarding the accused’s purpose or sexual interest in recording the students’ cleavage or breasts. Of course, unless the accused testified as to his purpose, reliance must be made on the totality of the circumstantial evidence. […] Unlike other cases proffered by the Crown attorney, the students here are fully clothed and not so situated, that I am persuaded that the recordings, even with images that predominately display the students’ cleavage, have as their focus the student’s sexual organs. While a conclusion that the accused was photographing the student’s cleavage for a sexual purpose is most likely, there may be other inferences to be drawn that detract from the only rationale conclusion required to ground a conviction for voyeurism.
[3] ONCA at para 44.
[4] ONCA At para 108,110.

Criminal Offence(s): Voyeurism