Canada: A New Approach To The Reasonable Expectation Of Privacy: R v Jarvis, 2019 SCC 10

Last Updated: February 28 2019
Article by Kelly Nicholson

Though it emerges in a criminal law context, the new decision of the Supreme Court of Canada in R v Jarvis, 2019 SCC 10 is likely to have an impact on future cases that consider the scope of an individual's privacy interest, whether in the criminal or civil sphere. Articulating a sophisticated understanding of how privacy may remain a reasonable expectation even in a public or semi-public space, the case will no doubt be of interest to employers and other parties whose operations bring into question the line between that information which is personal – to a worker or customer, for example – and that which, in the circumstances, may properly be examined or observed.

The accused was a high school English teacher in Ontario who used a kind of spy camera concealed within a pen to make surreptitious video records of female students at his school. The videos focused on the faces, breasts, and upper bodies of the students, and were made while the students were engaged in ordinary tasks in common areas of the school. Importantly, the students were unaware they were being recorded. The teacher's conduct was prohibited by a school policy in effect at the time.

His conduct was also prohibited by s. 162(1)(c) of the Criminal Code, which addresses the crime of voyeurism. That section makes it an offence to surreptitiously observe or make a visual recording of another person who is in circumstances that give rise to a reasonable expectation of privacy, if the observation is done or the recording is made for a sexual purpose. At trial, the accused admitted that he had made the recordings surreptitiously (a fact that could hardly be denied). It remained for the trial judge to determine whether the circumstances gave rise to a reasonable expectation of privacy, and whether the records were made for a sexual purpose. While the court answered the first question in the affirmative, it concluded that the Crown had failed to prove that the recordings were made for a sexual purpose.

The Crown appealed. The Court of Appeal for Ontario found that the trial judge had erred in law by failing to find that the teacher had made the surreptitious recordings for a sexual purpose. At the same time, however, a majority of the Court chose to uphold the acquittal, reasoning that the trial judge had also erred by finding that the students were in circumstances that gave rise to a reasonable expectation or privacy. The Crown therefore appealed the latter issue to the Supreme Court.

A six-member majority of the Court overturned the judgment of the Court of Appeal, substituted a conviction, and remitted the matter back to the trial judge for sentencing. Of particular interest in their judgment – written by the Chief Justice – is the approach they take to the concept of privacy, not only for the purposes of s. 162(1)(c) of the Criminal Code, but also as that concept is applied more generally. "Privacy", Wagner C.J. writes, "as ordinarily understood, is not an all-or-nothing concept." This observation is arguably at the core of the Court's understanding of privacy, which sees the "reasonable expectation or privacy" as something that may be validly preserved by an individual even in a public or semi-public place. Put another way, privacy is not something that subsists only behind the door of one's house or the firewall of one's computer. Privacy has a more mobile quality: it depends upon the circumstances one finds oneself in at any time.

From this observation, the Court develops a non-exhaustive list of considerations to assess when determining whether a person who was observed or recorded was in circumstances that gave rise to a reasonable expectation or privacy. 

  1. The location the person was in when observed or recorded. The location may be one from which the person sought to exclude all others, or expected to be observed only by a select few.  
  2. The nature of the impugned conduct; that is, whether it consisted of observing or recording. Since a recording is more intrusive, and potentially more damaging, a person's expectations with respect to recording versus observation may well be different.  
  3. Awareness of or consent to potential observation. Where, for example, a workplace deploys overt surveillance cameras, the expectation of privacy may well be diminished.  
  4. The manner in which the observation or recording was done. Here the Court puts emphasis on the length of the observation or recording, and how emerging technologies can be used to erode privacy interests.   
  5. The subject matter or content of the observation or recording. Obviously, the nature and quality of the information gathered by any sort of surveillance is a relevant consideration, and the more intimate and sensitive the information, the higher the privacy expectation will be.   
  6. Any rules, regulations, or policies that governed the observation or recording in question. Rules specific to a place (such as workplace policies) will typically be relevant, though not necessarily determinative, and their weight will vary with the context.  
  7. The relationship between the person who was observed or recorded and the person who did the observing or recording. A relationship of trust or authority will generate a higher expectation of privacy, since such relationships generate a concomitant expectation that they will not be abused.  
  8. The purpose for which the observation or recording was done. This is essentially a reiteration of an older principle, that the expectation of privacy in personal information will vary depending upon the purpose for its collection. A person disrobing for a medical examination or procedure, for example, abandons the expectation of privacy for that purpose. If, however, the information disclosed is used for a different purpose, the reasonable expectations of the patient have arguably been violated.  
  9. The personal attributes of the person who was observed or recorded.  Vulnerable individuals such as children are likely in a position to expect a higher degree of privacy in many situations.

These factors (which may vary or be added to, depending upon the context) are expressly applied to the question whether the circumstances in the Jarvis case gave rise to a reasonable expectation of privacy for the students affected, as contemplated by the voyeurism offence under s. 162(1)(c) of the Criminal Code; however, given their source and the depth of analysis found in the case on the nature of privacy interests in contemporary society generally, it is not difficult to anticipate that other decision-making bodies will apply this test to future disputes where a breach of privacy interests is at issue. The relevance of the factors to the balance between employer interests and employee privacy in the workplace is particularly obvious, and they may well alter existing tests for measuring that balance. Since interests of this sort are being litigated at an accelerating pace, we will not have to wait long for further decisions, both in the civil courts and the arbitral jurisprudence, analyzing and applying these principles to privacy disputes in the workplace.

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 Mondaq.com.

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

Authors
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
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Country
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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