2019 SCC 10

In 2019 SCC 10, a high school teacher, Mr. J, was charged with voyeurism after using a camera pen to surreptitiously record several female students and one female teacher. Mr. J’s pen cam-era emitted a red light, and a fellow teacher noticed that Mr. J often pointed it at his female students and reported Mr. J’s behaviour to the principle. The principal of the school saw Mr. J pointing the at female students on two different occasions and confiscated the camera pen. He later gave it to the police who found three active video files on the seized camera, including videos focused on a student’s breasts. Forensic analysis revealed a total of thirty-five video files. The vast majority of the secretly recorded videos captured female high school students ranging in age from 14 to 18 years old while they were going about normal school activities on school property. Although all subjects were fully clothed, most of the videos were shot to focus on the faces, upper bodies, and breasts of the students. Five videos were solely focused on the cleavage of three female students. None of the students knew they were being recorded and Mr. J admitted to taking the videos secretly.

The key issues[1] at the trial level 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. Mr. J was acquitted at trial.

At the Court of Appeal, the acquittal was upheld by the majority 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 purpose of the recording 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.[2]

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 where others could observe them, particularly because that school had 24-hour surveillance security cameras in and around the school, including signage 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, but decided they did not have an objective reasonable expectation of privacy and acquitted Mr. J.

At the Supreme Court of Canada, the issue of sexual purpose was conceded, so the Supreme Court only looked at whether the girls had a reasonable expectation of privacy when Mr. J filmed them. The Court unanimously held that the girls did have a reasonable expectation of privacy.

A majority of the Supreme Court judges decided that the courts must take a contextual approach when assessing whether someone has a reasonable expectation of privacy.[3] “Circumstances that give rise to a reasonable expectation of privacy” was noted as “circumstances in which a person would reasonably expect not to be the subject of the type of observation or re-cording that in fact occurred.”[4] Rather than focusing only on whether the person was in a public or private space, as the Court of Appeal did, the Supreme Court decided that when the courts consider the reasonable expectation of privacy they should look to the overall circumstances of the case and consider a variety of factors including:

(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 re-cording),
(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 per-son 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. This list of considerations is not exhaustive and not every consideration will be relevant in every case.[5]

These were only some of the factors that could be considered and were relevant to this case. Other cases may have other factors that would be relevant. However, just because someone was in public did not mean they no longer had a reasonable expectation of privacy.

Applying these factors to the case of Mr. J, the majority found that that schools are not fully public places and they are subjected to rules, including rules that prohibit teachers from filming their students for sexual purposes; the girls were recorded, which was much more invasive than being looked at by another person or being filmed by the security cameras; Mr. J used hid-den camera technology to take the videos, which allowed for close-up and lengthy videos he couldn’t have captured otherwise; the images were focused on the students’ faces and breasts and singled out particular girls; the students’ had a relationship of trust with Mr. J and he used his position of authority to gain access to them; Mr. J had made the images for a sexual purpose; and the girls were children who have greater privacy interests than adults. All of these factors helped the courts decide that girls had a reasonable expectation of privacy and Mr. J had committed voyeurism.

The Court noted that it is common for people to be incidentally recorded in the background of people’s pictures and videos without their privacy being violated but that:

[…] individuals going about their day-to-day activities — whether attending school, going to work, taking public transit or engaging in leisure pursuits — also reasonably expect not to be the subject of targeted recording focused on their intimate body parts (whether clothed or unclothed) without their consent. A student attend-ing 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. 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. J] and the fact that they were recorded without the students’ con-sent, 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.[6]

Mr. J was found guilty of voyeurism and his case was sent back to the trial level for sentencing, which has not yet been decided.

Also see: 2017 ONCA 778 (Appeal), 2014 ONSC 1801, 2015 ONSC 6813, [2017] SCCA No 440.

[1] There was an additional issue related to the search and seizure of the camera pen, which was found to violate Mr. J’s rights, but was justified.
[2] ONCA at para 44.
[3] The minority would have only looked to four factors when determining the reasonable expectation of privacy: the location, the subject matter, the purpose of the recording/observation, and the complainant’s awareness of the re-cording/observation. The majority and the minority also disagreed on the use of section 8 privacy jurisprudence when assessing the reasonable expectation of privacy, with the majority finding it appropriate to look to the jurisprudence for interpretation purposes, while the majority did not.
[4] 2019 SCC 10 at para 28.
[5] 2019 SCC 10 at para 29.
[6] 2019 SCC 10 at para 90.

Criminal Offence(s): Voyeurism