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.


  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.

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.

In association with
Related Topics
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