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R v Jarvis: the Supreme Court of Canada clarifies the interpretation of “reasonable expectation of privacy” in the context of section 162(1) of the Criminal Code of Canada

reasonable expectation of privacy

On February 14, 2019, the Supreme Court of Canada made a landmark decision in R v Jarvis with its interpretation of the meaning of “reasonable expectation of privacy” in the context of section 162(1) of the Criminal Code of Canada involving a criminal offence of voyeurism. Although this case applies to a narrow context involving the criminal offence of voyeurism, the court’s clarification on the interpretation of “reasonable expectation of privacy” may be instructive when understanding privacy concerns beyond the criminal context.

What happened?

Ryan Jarvis (Jarvis) was a high school teacher in London, Ontario at Beal Secondary School (School) with the Thames Valley District School Board (School Board). He taught and supervised several students ranging from 14 to 18 years old. He was in good standing at the School and did not have any allegations against him regarding his teaching abilities or his dealings with the students.

During his time teaching at the School, a fellow teacher noticed that Jarvis was using a pen that had a recording device inside to record female students in and around the school. He could tell because there was a red light emitting from the upper part of the pen.

It turned out that Jarvis was recording videos of female students using a pen with a camera inside (Pen Camera). The videos, made without the students’ knowledge or consent, ranged in length from six seconds to about two and one half minutes. These students were fully clothed and were captured at various locations in and around the School, including hallways, classrooms, the cafeteria, staff offices, and outside of the building. The Pen Camera could be used as a writing tool, a USB device, or a camera with an on or off switch. The contents of the recording could then be transferred to any device via the USB connection.

The School was equipped with video cameras inside and outside the premises providing 24-hour surveillance, and there were signs highlighting this fact. These cameras, capable of recording only video, were there for safety and security purposes and were mounted to the wall near the ceiling. Teachers at the School were not permitted to access or manipulate the surveillance footage in any way for their personal use.

Neither the School nor the School Board gave Jarvis permission to use his Pen Camera to record audio or video of the students in the manner that he did. In fact, Jarvis never told anyone that he was doing this. There may have been cameras on the premises for security reasons, but Jarvis’ actions were clearly against the School Board’s policy that prohibited the making of these kinds of recordings.

When the coworker approached the principal and told him that he saw Jarvis using the Pen Camera to record students, the principal became concerned and notified the police. Consequently, the principal secured the Pen Camera from Jarvis (Jarvis voluntarily gave the Pen Camera to the principal when the principal asked to see it) right after seeing Jarvis use it to record a student, and gave it to the police.

At this point, the police received the Pen Camera and reviewed three of the videos. Subsequently, the police obtained a warrant to review the remaining contents on the Pen Camera. In total, there were 17 active videos of 30 different individuals – 27 were female students at the School. The focus of the audio and video footage was on females’ chest areas.

This led to the police obtaining a warrant to search Jarvis’ home to access all of his devices; ultimately, there was no evidence that the Pen Camera was ever plugged in to any of these devices so there was no further evidence of a criminal offence. Similarly, a search by the School Board’s manager of information technology services did not lead to discovery of any evidence of a criminal offence.

To that end, Jarvis was charged under section 162(1)(c) of the Criminal Code of Canada (Criminal Code) for committing the offence of voyeurism under 162(1)(c):

“162(1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(c) the observation or recording is done for a sexual purpose”

The Crown argued that Jarvis could meet the components of the test for voyeurism because Jarvis: (1) surreptitiously (secretly) observed and recorded the students; (2) in the circumstances that gave rise to a reasonable expectation of privacy; and (3) made these observations and recordings primarily for a sexual purpose.

Although Jarvis admitted that he was secretly observing and recording the students at the School, he did not agree with the second two elements of the test for voyeurism. He argued that there was no reasonable expectation of privacy – in this public place, there were already security video cameras placed around the School, a fact that was known to everyone. Further, the observations and recordings were not made for a sexual purpose; there was ambiguity that had to be resolved in his favour and lead to an acquittal.

It is also important to note that Jarvis initially brought an application to exclude the information contained in the Pen Camera from being admitted into evidence, claiming that section 8 of the Canadian Charter of Rights and Freedoms (Charter) prohibited such an unreasonable search and seizure of his Pen Camera.

1. Trial decision

At the Ontario Superior Court of Justice, Jarvis’ initial application requesting that the videos not be admitted into evidence because of section 8 of the Charter was not successful. The court found that, although there was a violation of the section 8 right to be free from unreasonable search and seizure, the information contained in the Pen Camera could be admitted into evidence because of section 24(2) of the Charter. That is, admitting the evidence would not bring the administration of justice into disrepute.

The trial judge concluded that Jarvis’ behaviour was morally repugnant and professionally objectionable in breach of his obligation to his profession; this was a matter for another forum (disciplinary hearings with the Ontario College of Teachers).

In terms of the offence of voyeurism under section 162(1)(c) of the Criminal Code, the judge held that not all components of the test for voyeurism were met:

  1. Jarvis surreptitiously (secretly) observed and recorded the students
  2. The observations and recordings were made in the circumstances that gave rise to a reasonable expectation of privacy
  3. However, Jarvis did not make these observations and recordings primarily for a sexual purpose

Therefore, since the third element of the test could not be met, Jarvis was found to be not guilty of the offence and was acquitted.

2. Court of Appeal decision

At the Ontario Court of Appeal, the Crown appealed the trial judge’s decision and insisted that, based on the evidence, the only reasonable conclusion was that the recordings were made for a sexual purpose.

In response, Jarvis first argued that the trial judge never should have admitted the contents of the Pen Camera into evidence under section 24(2) of the Charter. Secondly, Jarvis maintained that the trial judge made another error in finding that there were circumstances that gave rise to a reasonable expectation of privacy.

Admission of the evidence

The Court of Appeal reviewed the trial judge’s decision to admit the evidence resulting from the initial warrantless search of the Pen Camera. Although the Court of Appeal disagreed with a few findings of the trial judge in this regard, the Court of Appeal ultimately agreed with the outcome that there was a section 8 Charter violation, but the evidence could be admitted under section 24(2) of the Charter.

More specifically, the Court of Appeal confirmed that, while Jarvis had a limited expectation of privacy in the Pen Camera, there was no basis in law for the police to conduct any kind of warrantless search of the device where the search was not incident to the arrest – there was indeed a violation of section 8 Charter rights.

Furthermore, given the significantly reduced expectation of privacy in the Pen Camera’s contents, on balance, the admission of the evidence would not bring the administration of justice into disrepute. The evidence could still be admitted pursuant to section 24(2) of the Charter when considering these factors: the seriousness of the Charter infringing conduct; the impact of the Charter violation on Jarvis’ Charter-protected interest; and society’s interest in the adjudication of the case on its merits.

This discussion involved the unreasonable search and seizure without a warrant in respect of the police’s cursory review of the Pen Camera to view the first three videos before obtaining the warrant and subsequently discovering the 17 videos.

However, from an employment perspective, it is important to note that the Court of Appeal confirmed that, just as in the previous R v Cole case, which was decided by the Supreme Court of Canada in 2012, Jarvis had a diminished expectation of privacy in his Pen Camera because he was using it at the School where the administration had supervisory jurisdiction over him and the authority to seize and search its contents after Jarvis was caught taking pictures of the students.

Indeed, the School and School Board were authorized to ask Jarvis for the Pen Camera and review the contents when acting in their administrative and supervisory role.

Another main reason for there being a diminished expectation of privacy in the Pen Camera was that many privacy concerns were not present in this case; for instance, the Pen Camera did not contain any personal information and was never connected to the Internet to send or receive communications. In fact, the only information contained in the Pen Camera consisted of videos of other people, not Jarvis.

As a result, the Pen Camera was admitted into evidence pursuant to section 24(2) of the Charter.

Whether the videos were made for a sexual purpose

The Court of Appeal reviewed the trial judge’s decision and agreed that since Jarvis did not testify whether the videos were indeed made for sexual purpose, the answer had to be determined by examining all the circumstances. The Court of Appeal also agreed with the trial judge that Jarvis’ conduct was morally repugnant and an unacceptable breach of the teacher-student trust relationship.

However, the Court of Appeal disagreed with the trial judge for two reasons: the trial judge misinterpreted the sexual purpose provision, and did not identify any reasonable inference other than that the purpose of the videos with sexual.

As a consequence, the Court of Appeal allowed the Crown’s appeal on this issue. That is, the videos were made for sexual purpose, and met the requirement for the offence.

Whether the videos were taken in circumstances that gave rise to a reasonable expectation of privacy

The Court of Appeal noted that, in the context of this offence of voyeurism under the Criminal Code, the protection was not from the state (as in section 8 of the Charter), but from other people. That is, individuals were entitled to expect to be able to protect their personal sexual integrity and dignity from non-consensual visual intrusion by other people.

That said, there were some limitations set out in the voyeurism provisions, signaling that we live in an open society were visual interactions part of everyday life and is valued. Many people had cameras and took pictures and videos in their day-to-day lives, and then posted these pictures on the Internet. Yet, there were some circumstances that gave rise to an expectation of privacy, even in public places.

In this case, the trial judge found that students had a reasonable expectation of privacy in the School.

However, the Court of Appeal disagreed with the trial judge that there was a conflation of the two concepts of privacy and surreptitious (secret) recording, which were two separate requirements of the offence. The court clarified that the areas of the School where students congregated and attended classes were not areas where people had any expectation that they would not be observed were watched.

The Court of Appeal stated:

“Clearly, students expect that a teacher will not secretly observe or record them for a sexual purpose at school. However, that expectation arises from the nature of the required relationship between students and teachers, not from an expectation of privacy. The expectation would also prevail, I would suggest, if a student met a teacher at a mall”

Thus, the expectation to not be observed or recorded in this way had more to do with the teacher-student relationship and not any expectation of privacy.

Accordingly, this part of the test for voyeurism was not met.

So, the Court of Appeal found that the evidence could be admitted and:

  1. Jarvis surreptitiously (secretly) observed and recorded the students
  2. However, the observations and recordings were not made in the circumstances that gave rise to a reasonable expectation of privacy
  3. Jarvis made these observations and recordings primarily for a sexual purpose

Jarvis was again acquitted.

It is worth noting that there was a dissenting this decision whereby Grant Huscroft JA would have admitted the evidence, and found that all three parts of the test were met for the offence of voyeurism because in his view, in contrast to the majority’s finding, the recordings were made in circumstances that gave rise to a reasonable expectation of privacy.

More specifically, he stated that a location-based approach to privacy protection was problematic, especially when considering all of the circumstances. The location was only one factor to consider in addition to these factors: students were required to attend the School for educational purposes; schools were not actually public places open to all since access was controlled by school authorities; the hallways and grounds of the School were under constant surveillance for security purposes; access to the surveillance footage was not permitted; and there was a School Board policy prohibiting the making of visual recordings similar to those made by Jarvis. In fact, Grant Huscroft JA would have entered a conviction.

3. Supreme Court of Canada decision

At the Supreme Court of Canada, the Crown appealed the acquittal. The Supreme Court of Canada allowed the Crown’s appeal. Not only did the court confirm that the videos were rightly admitted into evidence, but the court also confirmed that all parts of the test for voyeurism under section 162(1)(c) of the Criminal Code were met:

  1. Jarvis surreptitiously (secretly) observed and recorded the students
  2. The observations and recordings were made in the circumstances that gave rise to a reasonable expectation of privacy
  3. Jarvis made these observations and recordings primarily for a sexual purpose

The Supreme Court of Canada elaborated on the only issue in the appeal, the interpretation of “a reasonable expectation of privacy” in the context of section 162(1)(c) of the Criminal Code.

Plainly put, circumstances that gave rise to a reasonable expectation of privacy for the purposes of section 162(1)(c) of the Criminal Code were circumstances in which a person would reasonably expect not to be the subject of the type of observation recording that actually occurred. There was no doubt that the students were in circumstances where they would reasonably have expected not to be the subject of videos focusing on their upper bodies and not to be the subject of videos recorded for sexual purpose by a teacher. This meant that the test for voyeurism was met and the court allowed the appeal and entered a conviction.

More specifically, to determine whether a person had a reasonable expectation of privacy within the meaning of section 162(1)(c) of the Criminal Code, the court had to consider the entire context in which the observation or recording took place. There were several considerations relevant to this inquiry – but it was not a closed list. Some considerations in this non-exhaustive list could include:

  • The location where the observation or recording occurred
  • The nature of the impugned conduct, that is, whether it consisted of observation, or recording that was associated with a heightened impact on privacy
  • The awareness or consent of the person who was observed or recorded
  • The manner in which the observation or recording was done, considering whether it was enhanced by technology
  • The subject matter or content of the observation or recording, considering whether certain individuals were targeted
  • Any rules, regulations or policies that governed the observation or recording in question, keeping in mind that they were not necessarily determinative and had to be given appropriate weight in the context
  • The relationship between the parties, including whether there was a relationship of trust or authority
  • The purpose for which the observation or recording was made
  • The personal attributes of the person who was observed or recorded, including whether the individuals were young persons

The court emphasized that not every single one of these considerations would be relevant in every case and it depended on the circumstances of the particular case being examined.

The Supreme Court of Canada highlighted that, when considering the above list, it was still appropriate to examine the purpose of the observation or recording when deciding if there was a reasonable expectation of privacy, notwithstanding the element of the offence that the observation or recording be done for sexual purpose. The purpose was only one non-determinative factor to be taken into account along with other circumstances that were relevant. Why could this be? There could be situations where there was not a breach of expectation of privacy despite having a sexual purpose; in like manner, there could be a breach of an expectation of privacy regardless of the purpose.

Moreover, the Supreme Court of Canada pointed out that, although surreptitious observation or recording was an element of the offence of voyeurism, it was still important to consider this factor when assessing whether there was a reasonable expectation of privacy. Why could this be? A person could choose to be secretive about recording another person without violating the reasonable expectation of privacy; along the same lines, an observation or recording that was done openly could breach a reasonable expectations of privacy but not constitute an offence of voyeurism.

The Supreme Court of Canada reviewed the meaning of “privacy”, and noted that the concept recognized that individuals may be in circumstances where they could expect to be the subject of certain types of observation or recording, but not to be the subject of other types. There were several examples to highlight this point. One example could be women in a communal women’s change room at a public pool – they would expect to be observed incidentally in various states of undress by other users of the change room, but they would unquestionably still have an expectation of privacy when it came to observation or recording by others.

The main point was that several factors could influence whether a person had a reasonable expectation of privacy as contemplated by Parliament when crafting section 162(1) of the Criminal Code. This was because “circumstances”, on which this decision depended, involved analyzing a range of factors that were considerations not limited solely to location or physical surroundings.

The Supreme Court of Canada noted the broader legal context – the court clarified that case law interpreting section 8 of the Charter emphasizing the importance of the totality of the circumstances was instructive when interpreting section 162(1) of the Criminal Code.

Consequently, when considering the above-mentioned list of considerations, the purpose of section 162(1) of the Criminal Code, and the broader legal context, it became clear that privacy was not an all-or-nothing concept, and a more holistic approach to interpreting the reasonable expectation of privacy was essential.

The Supreme Court of Canada disagreed with the Court of Appeal’s dissenting judge, Grant Huscroft JA, in his ad hoc approach; rather, with respect to section 162(1) of the Criminal Code, the Supreme Court of Canada stated:

“Thus, the only question to be asked in determining whether a person who is observed or recorded was in circumstances that give rise to a reasonable expectation of privacy is whether that person was in circumstances in which she would reasonably have expected not to be the subject of the observation or recording at issue”

Ultimately, the Supreme Court of Canada’s question was answered in the affirmative when considering the relevant factors. There was indeed a reasonable expectation of privacy in this case, so Jarvis was convicted.

It is important to note that there was a difference in opinion, not with the ultimate outcome, but with the issue of whether section 8 Charter jurisprudence was instructive for interpreting section 162(1) of the Criminal Code. In fact, Rowe, Côté, and Brown JJ would not have considered section 8 Charter jurisprudence in order to interpret section 162(1) of the Criminal Code. They insisted that the conceptual framework for defining Charter rights had to remain distinct from that used to define the scope of Criminal Code offences, and it was not appropriate for courts to expand criminal liability by referencing Charter jurisprudence.

They pointed out that the Criminal Code was a statute, and not a constitutional document involving breaches of fundamental rights by state actors; the analysis used to interpret each had to be kept distinct since the purposes and functions were at odds. Instead, it was more appropriate to interpret “a reasonable expectation of privacy” in section 162(1) of the Criminal Code having regard for autonomy and sexual integrity. Charter values were legitimate interpretive aids only in cases of ambiguity.

Rowe, J (Côté, and Brown JJ conjuring) stated:

“The power imbalance of the police as agents of the state vis-à-vis a citizen that is at the heart of the preoccupations under s. 8 of the Charter is not present under s. 162(1) of the Criminal Code. As s. 162(1) protects invasions of privacy perpetrated by one individual against another, the meaning given to “reasonable expectation of privacy” in s. 8, where the purpose is to prevent abuse of state authority, simply has no application”

What does this mean for employers?

As can be seen from the above analysis, when courts interpret section 162(1) of the Criminal Code, they will need to use a more holistic approach when interpreting “reasonable expectation of privacy” to determine whether the accused is guilty of the offence of voyeurism under the Criminal Code. There are several factors to consider in a non-exhaustive list, and these considerations depend on the particular facts of the case.

From employment perspective, employers can see that the section 8 Charter analysis was pertaining to the police searching and seizing Jarvis’ Pen Camera without a warrant, and this constituted a violation (albeit the evidence was admitted anyhow under section 24(2) of the Charter). For employers, this case confirms the finding in R v Cole, that employers have the authority to search and seize items used by employees when engaging in employee misconduct having a criminal element, and contact police. In this case, Jarvis had a diminished expectation of privacy and the School had the authority under its administration had supervisory jurisdiction over him to seize and search the contents of the Pen Camera after the employer caught Jarvis taking pictures of the students.

In workplace privacy disputes, the question of whether there was a reasonable expectation of privacy already involves an adjudicator applying a holistic approach whereby the labour arbitrator, court, or Privacy Commissioner considers the relevant factors in the case; that said, it will be interesting to see how this recent decision by the Supreme Court of Canada affects legal analyses in other contexts beyond the criminal context.

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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