Canada: Sex, Lies & Videotape: Where Do Canadian's Have A Reasonable Expectation Of Privacy

Last Updated: April 3 2019
Article by McCague Borlack LLP

The recent Supreme Court of Canada decision in R v Jarvis is the high court's most recent pronouncement on privacy rights.1 Jarvis concerned a high school English teacher who used a pen camera to surreptitiously record videos of female students. Charged with the criminal code offence of voyeurism2 the courts below grappled with the issues of whether Mr. Jarvis recorded the students for a sexual purpose,3 and whether the students had a reasonable expectation of privacy while at school.4 Ultimately, Mr. Jarvis's conviction was upheld and the matter remitted for sentencing, but along the way, the court laid down some important principles which will affect the judicial interpretation of privacy in all areas going forward.

In criminal law, the concern is typically the rights of privacy that citizens have from the government, for example, the right against unreasonable search and seizure enshrined in section 8 of the Canadian Charter of Rights and Freedoms. However, Jarvis is interesting because it is a criminal law case in which the Supreme Court of Canada spoke about the privacy that exists between citizens. Citizens are not bound by the constitution, only the government, its entities and its employees while working for the government.

...the court has opened the door for the expansive history of s. 8 jurisprudence to inform privacy disputes in all areas of the law...

When interpreting "reasonable expectation of privacy" for the purposes of the voyeurism offence the Court said, "while the ultimate concern in the s. 8  context is whether there is a reasonable expectation of privacy vis-à-vis  the state, the s. 8 case law contemplates that individuals may have reasonable expectations of privacy against other private individuals and that these expectations may be informed by some of the same circumstances that inform expectations of privacy in relation to state agents."5 This is significant because the court has opened the door for the expansive history of s. 8 jurisprudence to inform privacy disputes in all areas of the law going forward.

In Ontario, the Courts have already recognized there is a right to privacy between citizens, however, it has addressed it in civil law, not criminal (which is the purview of the Federal Government under the Canadian Constitution). In Ontario, while the approach to invasions of privacy is still developing, it is possible to bring a civil action against another person for an invasion of privacy, but the tort is called "intrusion upon seclusion".

This tort was recognized in the 2012 case Jones v Tsige.6 In Tsige, the Court invoked Supreme Court jurisprudence in its analysis of privacy, specifically writing that the right to privacy has been accorded constitutional protection and should be considered as a Charter value in the development of the common law.

The elements of the action or the test to prove an intrusion upon seclusion are whether:

"[o]ne who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his [or her] privacy, if the invasion would be highly offensive to a reasonable person."8

The court also noted that proof of harm to a recognized economic interest is not an element of the cause of action, opening the door to symbolic damages.9 However, these damages are very limited. In Tsige, the plaintiff and defendant worked at the same bank where the plaintiff also kept a bank account. The defendant was also the former wife of the plaintiff's current partner. The defendant would repeatedly access her ex-husband's new partner's account to check into her finances. The Court awarded the plaintiff $10,000 for these repeated, deliberate and highly offensive invasions of privacy.

Despite the availability of symbolic damages, the common law privacy torts are not made to be used on every whim or flight of upset that captures a plaintiff. For example, in Larizza v Royal Bank of Canada, the plaintiff sued her former landlord for, amongst other things, requesting a credit check on her without her consent. Justice Favreau, who was upheld by the Court of Appeal,10 determined that a credit check by a potential landlord, even in the absence of consent, did not qualify as the type of personal information that would be protected by this tort. She also determined that this would not be so highly offensive that it would meet the third requirement of the test for intrusion upon seclusion.

...the jurisprudence for intrusion upon seclusion is highly contextual.

As in Jarvis, the jurisprudence for intrusion upon seclusion is highly contextual. Most people can instinctively agree that a bank employee monitoring the finances of her ex-husband's new girlfriend without consent and without any valid reason to do so is offensive and worthy of censure. Likewise, most people understand that a landlord will conduct a credit check on their potential tenants and, to the extent they do not share that information with third parties, most people would agree that this is not sufficiently serious or offensive to attract damages.

R v Jarvis takes this contextual approach and adds it to the criminal jurisprudence. It draws a distinction between the types of video surveillance done for student's security in a public place, like a school, versus the type of surreptitious video taken for a teacher's personal enjoyment. Jarvis adds a nuance to the s.8 jurisprudence that has not always been present; for example in the recent decision of R v Le,11 where the Court of Appeal found that Mr. Le did not have an expectation of privacy because he was in a friend's backyard rather than his own.

Jarvis seems to bring the criminal code and s. 8 jurisprudence more in line with the more nuanced common law test for intrusion upon seclusion while still leaving room for the s.8 jurisprudence to inform the still-developing law on intrusion upon seclusion. While this introduces a great deal of uncertainty into the criminal law as the case law develops (the same uncertainty that exists in the tort of intrusion upon seclusion today), it represents a hopeful step forward for the protection of privacy rights in Canada.

Footnotes

  1. 2019 SCC 10 [Jarvis].
  2. S. 162(1)(c).
  3. 2015 ONSC 6813.
  4. 2017 ONCA 778.
  5. Jarvis at para 58.
  6. 2012 ONCA 32 [Tsige].
  7. Tsige at para 43.
  8. Tsige at para 70.
  9. Tsige at para 75.
  10. 2017 ONSC 6140, upheld on appeal in 2018 ONCA 632.
  11. 2018 ONCA 56.

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