Canada: Privacy Includes Freedom From Unwanted Scrutiny – Even In A Public Place

Last Updated: February 28 2019
Article by Anne Posno

In R v Jarvis, the Supreme Court of Canada ("Court") convicted a high school teacher of voyeurism under section 162(1)(c) of the Criminal Code.  Mr. Jarvis used a concealed camera, inside a pen, to secretly video record female teenage students in common areas of a school. The video focused on their faces, upper bodies and breasts. 

The Court concluded there was no doubt from the circumstances of the recording that the students had a reasonable expectation that they would not be recorded in this manner. Importantly, the Court unanimously recognized that a person does not lose all expectations of privacy simply because she is in a public place where she knows she can be observed by others. 

Under section 162(1)(c), the offence of voyeurism is made out when: 

  • there is a surreptitious observation or recording by technology;
  • of a person "in circumstances that give rise to a reasonable expectation of privacy"; and
  • if the observation/recording is done for a sexual purpose. 

Given the scope and vigour of the Court's decision, it is puzzling that the case had different treatment below. At trial, the accused was acquitted because the judge was not satisfied that the recordings were for a sexual purpose. (This issue was admitted before the Supreme Court of Canada.) The Ontario Court of Appeal upheld the acquittal by ruling that the trial judge had erred in finding that the students were in circumstances that gave rise to a reasonable expectation of privacy. The appellate decision was unnecessarily influenced by the fact that the students were video recorded in common spaces, and were already subject to video surveillance at school.

Fortunately, on the final appeal, the Court had no difficulty recognizing that privacy is not an all-or-nothing concept. Privacy includes freedom from unwanted scrutiny – even in a public place where some types of visual recording are to be expected.  Not all forms of video recording are equal. Close-up videos of a student's face and intimate body parts are entirely distinct from surveillance videos of students as part of a situational landscape.

The Court's ruling was so strongly in favour of protecting the privacy rights of these female students, whose bodies, faces and breasts were the focus of Mr. Jarvis' videos that the Court indicated the same decision would likely have been made even if the accused was a stranger on a public street, rather than a teacher at the school.

Much of the Court's reasons engaged in the statutory interpretation of section 162(1)(c). Subsection (c) builds on the protection of privacy provided for in subsections (a) and (b) which focus on the surreptitious observation or recording of private voluntary/consensual exposure of one's body (including genital areas) or engagement in explicit sexual activity.

The voyeurism offence seeks to address two social harms: sexual exploitation and breach of privacy interests. The provision is intended to respond to the use of modern technology, and the ability to covertly create recordings, in public as well as in private, by effectively placing the voyeur in close proximity or at invasive angles of observation to the subject. Technology allows a viewer to observe from a position where they otherwise could not.

The Court opened the door to apply its reasoning to many other situations: a person lying on a blanket in a public park would not expect someone to use a telephoto lens to take a photo up her skirt, sunbathers at a public pool would not expect a drone to take high resolution photos of their genital areas, and a mother nursing her baby in the corner of a coffee shop would not expect to be video recorded.

The welcome broad scope of the Court's decision naturally raises the question of limitation:  when is the non-consensual recording of another in a public venue a criminal offence? The offence of voyeurism, in a public space, requires consideration of the following:  (a) the activity that the subject matter was engaged in, (b) the focus of any recording, including specific body parts, (c) the purpose of the recording/observation - was it sexual?, and (d) the subject matter's awareness of the recording.

A good example of a limit on the scope of criminal voyeurism was found in R v Lebenfish.  In that case, the accused openly took photos of a nude sunbather at Hanlan's Point. 

The judge acknowledged that the nude beachgoer did not abandon all privacy interests on disrobing in public. However, in the circumstances, there was no reasonable expectation that nude sunbathers at Hanlan's Point would not be subject to visual recording of their nudity.  These circumstances included that: nude beachgoers would appreciate that many people attending the beach will have cell phones with cameras; there was no prohibition against photographs; the photographs were taken of mature adults, with no more nudity in the photo than was exposed by observation by the naked eye. The judge also found that the accused's conduct was not surreptitious. 

In Jarvis, while the courts below struggled with the proper application of section 162(1)(c), fortunately, on the final appeal, the Court fully recognized that a person does not lose all expectations of privacy simply because she is in a public place where she knows she can be observed or recorded by others.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions