SCC: Privacy is not an “all-or-nothing” concept

The Supreme Court of Canada’s decision in R v. Jarvis, 2019 SCC 10 (Jarvis) establishes a robust approach to individual privacy rights. The Court considered whether a high school teacher committed the criminal offence of voyeurism when he filmed his female students with a hidden camera. The February 14 decision is important as it opens the door for courts to apply Canada’s constitutional privacy framework to alleged invasions of privacy as between individuals.

What You Need To Know

• Far-reaching application. Constitutional privacy rights can determine the scope of one’s reasonable expectation of privacy in other contexts. While Jarvis was decided in the context of a voyeurism offence, the Court’s decision applies to other contexts, including civil torts and workplace investigations.
• Privacy in the digital age. Being in a public or semi-public space does not automatically negate all expectations of privacy and the development of new technologies does not necessarily diminish one’s reasonable expectation of privacy.
• Impact on workplace complaints. Employers should note how the Court assessed one’s reasonable expectation of privacy. For example, when addressing a privacy-related workplace complaint, the nature of the relationship between the complainant and the accused should be considered, as well as any workplace by-laws, rules, regulations or policies in force at the time.
• Employers should review policies and practices. Businesses should examine their video surveillance policies—including rules on retention and access—to prevent unauthorized access to and illegitimate disclosure of surveillance footage.
  • Companies should limit access to surveillance to reduce the risk that employees are observed without consent.
  • Employees who are authorized to review surveillance footage or handle biometric records need to be appropriately trained and monitored.
  • Employers should also review their employee privacy policies to ensure they outline any circumstances under which they conduct surveillance.

Background

The accused, Mr. Jarvis, was a high school teacher. He used a camera concealed inside a pen to make video recordings of female students while they were engaged in ordinary activities in common areas of the school. Most of the videos focused on the faces and upper bodies of the female students, particularly their chests. The students were not aware that they were being recorded by the accused, nor did they consent to the recordings. As a result, Mr. Jarvis was charged with voyeurism contrary to section 162(1) of the Criminal Code.

Although Mr. Jarvis admitted to surreptitiously recording the videos without the students’ consent, the lower courts disagreed about whether the students were in “circumstances that give rise to a reasonable expectation of privacy”—a necessary component of the voyeurism offence.

Decision

The Supreme Court unanimously agreed that the students were in circumstances that give rise to a reasonable expectation of privacy for the purpose of the voyeurism offence. The Court disagreed, however, on the proper interpretation of a “reasonable expectation of privacy” in this context.

The majority of the Court affirmed that privacy is “not an all-or-nothing concept.”¹ In keeping with recent cases on privacy law, the Court explained that being “in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording.”² Rather, whether observation or recording would generally be regarded as an invasion of privacy depends on a variety of factors, which may include a person’s location; the form of the alleged invasion of privacy (whether it involves observation or recording); the nature of the observation or recording; awareness of, or consent to, potential observation or recording; 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.

While concurring in the result, three judges disagreed with the majority’s interpretation of a “reasonable expectation of privacy.” The minority interpreted the concept more narrowly by refusing to consider the privacy law principles developed under the Charter and by focusing only on the sexual nature of the privacy violation, rather than on the broader privacy interests canvassed by the majority.

In the result, the Court held that Mr. Jarvis recorded persons who were in circumstances that gave rise to a reasonable expectation of privacy and thus convicted him of voyeurism.

Considerations

While there is no free-standing common law right to privacy, the Court’s analysis in Jarvis could provide the framework for such a right and could also be imported into other privacy-related civil torts. At present, it remains to be seen how courts will rely on Jarvis in the private law context.

Interestingly, while one might assume the Court’s analysis was driven by the trust relationship that exists between students and teachers, the Court expressly wrote that it would have “likely reached the same conclusion even if [the recordings] had been made by a stranger on a public street rather than by a teacher at school.”³ This demonstrates the potentially far reaching implications of this decision on the privacy rights of individuals against other individuals.

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¹ para. 41

² para. 41

³ para. 90