What is (Reasonable Expectation of) Privacy: R v Jarvis – PART 1

As an Iranian Canadian, I  have many friends, who only speak Farsi and have no knowledge of English. Every now and then, when speaking to them, I run into a word that does not have an equivalent in Farsi. Privacy is one of such words. When stuck in these situations, one realizes how difficult it is to define certain words and concepts. I have definitely learned my lesson: privacy is difficult to define.

The very recent case of R v Jarvis, a 2019 Supreme Court of Canada decision, is primarily about the concepts of privacy and reasonable expectation of privacy. The discussion, in this case, is in the context of s. 162(1) of the Criminal Code, however, what the Supreme Court says about privacy, is very informative and instructive. The decision is very well written, easy to read and contains many examples that clarify the many points made by the Supreme Court. A careful study of the case is highly recommended.

***Please note that EVERYTHING that follows is INFORMATION ONLY and NOT ADVICE. If you have any questions, concerns or are in need of legal advice, please consult with a lawyer.***

SUMMARY

Mr. Jarvis, a high school teacher in London Ontario, apparently was using a concealed camera in his pen to film female students. He was charged with Voyeurism under s.162(1) of the Criminal Code. To prove the charge, the Crown had to prove beyond a reasonable doubt that the students who were filmed had a reasonable expectation of privacy in the locations they were filmed and also that the recording was for sexual purposes.

The trial judge acquitted Mr. Jarvis because he was not satisfied beyond a reasonable doubt that the recordings were for sexual purposes. The decision was appealed to the Ontario Court of Appeal. The Court of Appeal again acquitted Mr. Jarvis, but this time the Court of Appeal agreed that the recordings were sexual in nature, however, the majority was not satisfied that the students had a reasonable expectation of privacy in common areas of their school where they were filmed. The Crown then appealed to the Supreme Court of Canada, where the issue was whether or not the students had a reasonable expectation of privacy. Chief Justice Wagner wrote and delivered the decision of the majority, who allowed the appeal and entered a conviction.

In this post and the next, we will discuss some of the interesting points made by the Supreme Court.

INTERESTING POINTS OF THE DECISION

The Test for Reasonable Expectation of Privacy

In rendering the decision, the Chief Justice enumerated factors that should be considered when determining if a reasonable expectation of privacy exists, in paragraphs 5 and  6:

[5] … in any given case, these considerations may include the location where the observation or recording occurred; the nature of the impugned conduct, that is, whether it consisted of observation or recording; the awareness or consent of the person who was observed or recorded; 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 parties; the purpose for which the observation or recording was done; and the personal attributes of the person who was observed or recorded.

Chief Justice emphasized that this list is not exhaustive and the analysis is a contextual one. This means that the factors considered in one case may not all be relevant in another and the analysis should be done on a case-by-case basis.

Purpose is Relevant

Chief Justice pointed out that the purpose behind the impugned act is important for the purposes of the analysis. He referred to the decision of the Supreme Court in R. v. Dymentwhere it was held that “a person’s reasonable expectation of privacy with respect to information about the person will vary depending on the purpose for which the information is collected.”

In this regards, Chief Justice gave the example of a patient who goes to a doctor for a breast examination, stating that the patient cannot claim that the doctor breached her privacy while examining her. However, he also writes:

[31] … 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.

I find the word “undeniably” to be too strict here. What if the patient consents to see the doctor for a non-medical purpose? Obviously the doctor, by doing so, is breaching, amongst other things, his professional and fiduciary duties, but to say that the doctor “undeniably” breaches the patient’s privacy, I believe, is a bit of a stretch. This view of privacy is too wide and too open.

Note that purpose is analyzed twice in the context of Voyeurism. Once as an element of the offense which has to be established beyond a reasonable doubt and once as a non-determinative factor in the analysis of reasonable expectation of privacy. If you think this is a redundancy, well Chief Justice Wagner does not agree with you:

[32]  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)  . …

Interestingly enough, Justice Wagner also gave an example of situations where the purpose is irrelevant. As an example, he wrote that a camera hidden in a washroom, breaches reasonable expectation of privacy, no matter what the purpose of the recording is. [I’ve always wondered why there are no security cameras in washrooms, even in airports.]

Definition of Privacy

The Supreme Court made an effort to define privacy, in a general sense, in this case :

[36] The concept of “privacy” defies easy definition, and I do not propose to offer a comprehensive definition here. However, in a general sense and as ordinarily used, the word “privacy” includes the concept of freedom from unwanted scrutiny, intrusion or attention.  …

An interesting point that Chief Justice Wagner made was that, if someone gives consent to or is aware of a certain privacy intrusive act, he or she does not necessarily waive all his or her right to privacy in that context. This point ties closely to the issue of purpose: It is important to what purpose you have given consent:

[41] … being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording.  …

This means that you cannot go to court and say I thought s/he would be okay with X, because s/he did Y. For example:

[38] … a couple who choose to film themselves engaged in sexual activity do not thereby waive their expectation that third parties will not secretly observe or record them engaging in that activity.

Another example:

[39] Similarly, a woman changing in a communal women’s change room at a public pool would expect to be observed incidentally in various states of undress by other users of the change room. However, there can be no debate that she would retain some expectation of privacy with respect to observation or recording. For one thing, she would expect to be observed only by the other women in the change room and not by the general public. She would also expect not to be photographed or video recorded while undressing, either by other change room users or by anyone else. If it turned out that a mirror in the change room was actually a one-way glass that allowed pool staff to view change room occupants or that someone had concealed a camera in a vent and was video recording persons while they were changing, surely this would be viewed as an invasion of “privacy”, on any ordinary understanding of that word.

Another example:

[40] … For example, a person lying on a blanket in a public park would expect to be observed by other users of the park or to be captured incidentally in the background of other park-goers’ photographs, but would retain an expectation that no one would use a telephoto lens to take photos up her skirt (a hypothetical scenario discussed in Rudiger, at para. 91). …

It is interesting that these examples are all in a sexual context. A non-sexual example would be in the context of collecting, storing, sharing, and disposing of personal information by government institutions or websites. If you give your consent to website X to gather your name and email address for certain purposes, then website X cannot use that information for other purposes. That would probably be a breach of your privacy. Does this sound familiar to you?

In the next part, we will examine the rest of the decision.

 

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