A school teacher secretly recorded his female students’ breasts with a camera pen while they were engaged in normal activities at school. Mr. Jarvis was charged with voyeurism under s. 162(1) of the Criminal Code. That offence is committed where a person surreptitiously observes or makes a visual recording of another person who is in circumstances that give rise to a reasonable expectation of privacy, if the observation or recording is done for a sexual purpose.
At trial, the accused admitted he had secretly made the recordings. But while the trial judge found that the students had a reasonable expectation of privacy, he acquitted the accused because he was not satisfied that the recordings were made for a sexual purpose.
The Court of Appeal unanimously decided that the only reasonable inference was that the recordings were, in fact, made for a sexual purpose. But a 2-1 majority of the Court upheld the acquittal on the basis that the students did not have a reasonable expectation of privacy.
Justice Huscroft, writing in dissent for the Court of Appeal, found that there was a reasonable expectation of privacy. The Crown appealed as of right to the Supreme Court.
The Supreme Court unanimously found that the students did have a reasonable expectation of privacy in the circumstances, and Mr. Jarvis was convicted of voyeurism.
The decision of Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon and Martin JJ. was written by Chief Justice Wagner. Though it is circumstance-specific, the decision is likely to be instructive for a wide range of future cases involving section 8 of the Charter (section 8 provides everyone in Canada with protection against unreasonable search and seizure) or cases in which an offence requires that the victim have a reasonable expectation of privacy.
On the Court’s reasoning, the circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) are circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that occurred. The inquiry should take into account the entire context in which the impugned observation or recording took place. Relevant considerations may include:
- the location the person was in when she was observed or recorded,
- the nature of the impugned conduct (whether it consisted of observation or recording),
- awareness of or consent to potential observation or recording,
- the manner in which the observation or recording was done,
- the subject matter or content of the observation or recording,
- any rules, regulations or policies that governed the observation or recording in question,
- the relationship between the person who was observed or recorded and the person who did the observing or recording,
- the purpose for which the observation or recording was done, and
- the personal attributes of the person who was observed or recorded.
The Court noted that this list of considerations is not exhaustive and not every consideration will be relevant in every case. But the important take-away is that being in a public or semi-public space will not automatically strip someone of their expectation of privacy in the context of s.162(1).
[…] “privacy,” as ordinarily understood, is not an all-or-nothing concept. Furthermore, being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording. – Wagner C.J., writing for the Court, at paragraph 41
To this end, the decision is also an example of some excellent statutory interpretation work. The following is from the case headnote, and summarizes the majority’s interpretation of the words “circumstances that give rise to a reasonable expectation of privacy”:
The immediate statutory context of the words “circumstances that give rise to a reasonable expectation of privacy” lends further support to the view that this element of the offence is not governed solely or primarily by a person’s physical location and does not limit the commission of the offence to traditionally private spaces. Paragraph (a) of s. 162(1) expressly circumscribes the scope of the prohibited observation or recording by reference to location and it would be incongruous with that paragraph to read the requirement that the person who is observed or recorded be in circumstances that give rise to a reasonable expectation of privacy as also being governed by location. Furthermore, the inclusion of paragraphs (b) and (c) in s. 162(1) indicates that Parliament understood that a person could have a reasonable expectation of privacy somewhere other than in a place where nudity or explicit sexual activity can reasonably be expected or is in fact taking place.
The Court also notes that “there is nothing incongruous about considering the purpose of observation or recording in determining whether it was done in breach of a reasonable expectation of privacy.”
The fact that it is an element of the offence in s.162(1)(c) that observation or recording be done for a sexual purpose does not make it inappropriate to consider the purpose of the observation or recording in assessing whether it was done in breach of a reasonable expectation of privacy, as required by s. 162(1). In the context of this latter inquiry, purpose is only one non-determinative factor to be taken into account along with other relevant circumstances. By contrast, 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.
But insofar as statutory interpretation goes, the concurring judgment departs from the majority on the point of whether s. 8 of the Charter can help in the interpretation of s. 162(1).
The majority thinks s.8 is instructive:
Parliament must be understood has having chosen the words “reasonable expectation of privacy” in s.162(1) purposefully and with the intention that the existing jurisprudence on this concept would inform the content and meaning of those words. In addition, the s. 8 case law represents a rich body of judicial thought on the meaning of privacy in our society. Far from being unmoored from our ordinary perceptions of when privacy can be expected, judgments about privacy expectations in the s. 8 context are informed by our fundamental shared ideals about privacy as well as our everyday experiences.
In contrast, the concurring judgment, while agreeing that the students had a reasonable expectation of privacy and that Mr. Jarvis is guilty of voyeurism, found that s. 8 jurisprudence should not inform the interpretation of s. 162(1). Justice Rowe, writing for Côté, Brown and Rowe JJ., found that the conceptual framework for defining Charter rights should remain distinct from that used to define the scope Criminal Code offences:
I agree with the respondent that to interpret “reasonable expectation of privacy” in s. 162(1) by reference to the s.8 jurisprudence would put the judiciary in the position of creating new common law offences, despite their abolition in the enactment of s.9(a) of the Criminal Code: R.F, at para. 42. Of course, the factual context will change with time, notably as regards technologies to observe persons; but that is different from the nature of the reasonable expectation of privacy. Thus, even if “reasonable expectation of privacy” had the same meaning under s.8 and s.162(1) at the time of the enactment, the meanings would diverge over time as the s.8 jurisprudence evolves but the meaning of s.162(1) is intended to remain fixed as of the time of its enactment. Criminal offences are not grafted onto the living tree of the Charter. – Rowe J., writing for the concurring judgment, at paragraph 98
The concurring judges would have preferred that a reasonable expectation of privacy in the context of s.162(1) be interpreted in light of the harms contemplated in related provisions in the scheme for sexual offences in Part V of the Criminal Code. In the context of the voyeurism offence, Côté, Brown and Rowe JJ felt that “privacy should be interpreted with regard to personal autonomy and sexual integrity.”
Many of those involved in online discussion surrounding this case have argued that this decision should have been an easy one for the Court, or that it never should have made it to the Supreme Court at all (in that it’s obvious the children had a reasonable expectation of privacy). The impact on the schoolchildren who were secretly recorded by their teacher for a sexual purpose is distressing, especially given the breach of trust involved. But I am glad this case made it to the Supreme Court, even if only because the two decisions provide some solid statutory interpretation guidance, and a well-rounded discussion on how s.8 jurisprudence fits into the analysis.