( Disponible en anglais seulement )
In R v Jarvis, the Supreme Court of Canada convicted a high school teacher of voyeurism after finding that students had a reasonable expectation of privacy while at school.
The teacher in question taught at a high school in London, Ontario. Unbeknownst to his students, he recorded them during ordinary school activities using a hidden camera concealed in a pen. Almost all of these videos focused on the faces and breasts of female students, and the vast majority of them featured students wearing low-cut or close-fitting tops. The teacher’s conduct was expressly prohibited by school board policy.
He was charged with voyeurism under s. 162(1) of the Criminal Code on the basis that he surreptitiously recorded the students in circumstances that gave rise to a reasonable expectation of privacy, and because the recordings were done for sexual purposes.
The trial judge acquitted the teacher. He found that while the students had a reasonable expectation of privacy because they had an expectation that they would not be surreptitiously recorded, he was not satisfied that the recordings were for a sexual purpose.
The Ontario Court of Appeal upheld the trial judge’s acquittal, but for different reasons. The Court unanimously found that the recordings were for a sexual purpose. However, the majority of the Court held that the students had no reasonable expectation of privacy because they were engaged in regular school activities in which they could expect to be seen by others and that the school’s security cameras would record them.
The Supreme Court of Canada allowed the appeal and reversed the lower courts’ decisions. The only issue before the Court was whether or not the recorded students were in circumstances such that would give rise to a reasonable expectation of privacy.
The majority of the Supreme Court of Canada held that circumstances that give rise to a reasonable expectation of privacy are not merely those in a private location or dwelling, but are those in which “a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred”.
To assist in determining if circumstances give rise to a reasonable expectation of privacy, the Court provided a non-exhaustive list of factors to consider, namely:
- the location the person was in when she was observed or recorded;
- the nature of the impugned conduct, that is, whether it consisted of observation or recording;
- awareness 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.
Applying these factors to the case at hand, the majority found first that a high school is not an entirely public place, but has restrictions on who can enter and when. They further reasoned that a recording has a greater chance to impact privacy than mere observation, especially when the recording is done surreptitiously. While there were security cameras throughout the school, they found that there was a difference between expecting to be recorded in passing and being recorded by the teacher in the manner in which he did. The fact that there was a policy in place prohibiting the teacher’s conduct further indicated an expectation of privacy, as students would expect that he would abide by the rules. The majority found that students should reasonably expect that teachers would not use their authority over, and access to, them to make such recordings. Finally, they found that the sexual nature of the recordings and the fact that the subjects of the recordings were young persons who often respect and defer to adult authority weighed in favour of a finding that the students had a reasonable expectation of privacy.
Although the Court did not deny that the growth of technology may lead people to reasonably expect that they might be recorded out in public, the Court noted the importance of understanding that those people do not expect to be the subject of targeted recording focused on their intimate body parts without their consent.
The decision of the Supreme Court of Canada has arguably balanced the existing jurisprudence, which has held that students when attending school do not have the same rights of privacy as individuals in a public space, while recognizing that some rights to privacy must be retained even when passing through the school house doors.