Teacher using concealed camera to make surreptitious video recordings of female high school students – voyeurism?

What defines expectation of privacy for the Criminal Code offence of voyeurism? R. v. Jarvis 2019 SCC 10 was largely about a teacher in a high school who used a covert, miniature camera to take videos of young women’s cleavage over more than a year. It was discovered and he was charged under the relatively new voyeurism offence in the Code. Two essential elements of the offence are that there have to be circumstances that give rise to a reasonable expectation of privacy and the recording has to be done for a sexual purpose. In Jarvis, the recording took place in otherwise “public areas” of the school, so not in washrooms or changing rooms. It also has to be “surreptitious”, but the observation itself was not surreptitious. What was being recorded was largely observed in real-time by the teacher. The recording was surreptitious.

While the trial judge found that the students the accused had recorded were in circumstances that give rise to a reasonable expectation of privacy, he acquitted the accused because he was not satisfied that the recordings were made for a sexual purpose (it’s hard to get my head around that, as the teacher had many, many recordings spanning more than a year of students’ cleavage and chest areas. I’m not sure what other purpose he could have had, but what do I know?). The Court of Appeal unanimously concluded that the trial judge had erred in law in failing to find that the accused made the recordings for a sexual purpose. Nevertheless, a majority of the Court of Appeal upheld the accused’s acquittal on the basis that the trial judge had also erred in finding that the students were in circumstances that give rise to a reasonable expectation of privacy (the court was split on the reasonable expectation of privacy in a “public place” where the young women could generally be observed by teachers and other students). 

The SCC ruled that… “Privacy”, as ordinarily understood, is not an all-or-nothing concept, and being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording. Rather, whether observation or recording would generally be regarded as an invasion of privacy depends on a variety of factors, which may include (these are not word for word how the SCC listed them):

  • a person’s location – the fact that the location was one from which the person had sought to exclude all others, in which she felt confident that she was not being observed, or in which she expected to be observed only by a select group of people may inform whether there was a reasonable expectation of privacy in a particular case.
  • the form of the alleged invasion of privacy – was it an observation or recording? Given that recording is more intrusive on privacy than mere observation, a person’s expectation regarding whether she will be observed may reasonably be different than her expectation regarding whether she will be recorded in any particular situation. 
  • the nature of the observation or recording – relevant considerations may include whether the observation or recording was fleeting or sustained, whether it was aided or enhanced by technology and, if so, what type of technology was used, etc.
  • the activity in which a person is engaged when observed or recorded and the part of a person’s body that is the focus of the recording – relevant considerations may include whether the observation or recording targeted a specific person or persons, what activity the person who was observed or recorded was engaged in at the relevant time, and whether the focus of the observation or recording was on intimate parts of a person’s body.
  • any rules, regulations or policies that governed the observation or recording in question – although formal rules, regulations or policies will not necessarily be determinative, in this case, there was a school board policy in effect at the relevant time that prohibited the type of conduct engaged in by the teacher.
  • the relationship between the person who was observed or recorded and the person who did the observing or recording – relevant considerations may include whether the relationship was one of trust or authority and whether the observation or recording constituted a breach or abuse of the trust or authority that characterized the relationship. This circumstance is relevant because it would be reasonable for a person to expect that another person who is in a position of trust or authority toward her will not abuse this position by engaging in unconsented, unauthorized, unwanted or otherwise inappropriate observation or recording.
  • the purpose for which the observation or recording was done – for example, if a patient disrobes to allow a physician to view her breasts or other sexualized parts of her body for the purpose of receiving a medical diagnosis, the patient cannot complain that the physician has breached any reasonably held expectation of privacy by performing the diagnostic procedure. However, if the diagnostic procedure turns out to be a pretext on which the physician relies in order to view the patient for a non-medical purpose — whether sexual or otherwise — the patient’s privacy will undeniably be violated. The SCC said that sexual purpose, as an element of the offence in s. 162(1)(c), must be established beyond a reasonable doubt for the offence to be proven. In some cases, depending on the entire context, observation or recording may not breach expectations of privacy despite having a sexual purpose. In such cases, the offence in s. 162(1) will not be made out. In other cases, observation or recording may be an obvious breach of privacy regardless of its purpose, and it can ground a conviction under s. 162(1) if the other elements of the offence are made out.
  • the personal attributes of the person who was observed or recorded – considerations such as whether the person was a child or a young person may be relevant in some contexts.

Because Jarvis’ videos were of teenage students, were recorded by their teacher in breach of the relationship of trust and of a formal school board policy, were shot at close range, were of high quality and were focused on the bodies of students, Jarvis acted contrary to the students’ reasonable expectations of privacy. The Court entered a conviction and remitted the matter for sentencing.

I suspect after this case, we will see more court cases and discussions around what is an expectation of privacy in generally public places? We’ll also have to think hard about what role technology plays in privacy, particularly where CCTV cameras are said to be largely equivalent to real-time recordings. This will impact our investigations in the months and years to come. As cited in para. 62 of the Jarvis decsion:

“This is not to say that any person who appears in any public place retains a reasonable expectation that she will not be recorded by anyone for any reason: some types of visual recording in public places are to be expected. Rather, it is to emphasize that there is a fundamental difference between mere observation and recording and that this difference is part of the context that must be considered in analyzing reasonable expectations of privacy.”

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