Privacy Rights: What is protected?

After years of relative obscurity, the Supreme Court in R. v. Jarvis, [2019] 1 S.C.R. 488 (S.C.C.) indicated that privacy rights remain sacrosanct and should not be eroded especially in the face of modern technology. Rather, the law must be responsive and robust in keeping pace with technology, especially in a world where we are being stripped layer by layer by the use of technology that invades our privacy.

The case exposed the continuing tension between the growing use of technology to the erasure of   personal privacy in both the public and quasi-public domain.

Properly understood, voyeurism was enacted in response to mounting concerns about sexual harm that engaged the use of recorded images. Given that background, the court believed that the provision should be read considering the grievance that the law was meant to curtail, instead of treating with the crime as a space-based offence.

In describing the interests that the criminal law seeks to protect, i.e., sexual harm, the court drew upon the jurisprudence, for example, the ruling in Ewanchuk, that “[t]he law must afford women and men alike the peace of mind of knowing that their bodily integrity and autonomy in deciding when and whether to participate in sexual activity will be respected.”¹  The court also examined the consultation papers prior to the enactment and understood in clear terms that the purpose of s. 162(1)  is to protect individuals, especially vulnerable individuals, from sexual exploitation. In discussing the law in a way that protects the sexual integrity of the complainants it shifts the focus away from the intention or motive of the accused and away from the location of the impugned conduct.²

It is hoped that the ruling in the case has laid to rest the location driven analysis of privacy rights by underscoring that a totality of the circumstances approach which gives right to a reasonable expectation of privacy vis-à-vis sexual integrity as a better understanding of the law.

What the ruling accomplished was to highlight and give credence to the abhorrent ways in which people are targets of voyeurism often in public spaces.  Narrowly read, circumstances giving rise to a reasonable expectation of privacy would constructively remove voyeuristic behavior targeting individuals (in public) outside of the ambit of the law.  Thus, this wide interpretation allows a plaintiff to avoid pitfalls of the spatial dimensions that have historically acted as barriers in claims for breaches of privacy in the public domain.

In this post I will provide a summary of facts of the case and rulings at the lower level.  I will then discuss the arguments of the majority and dissenting judgements at the Supreme Court. I do not propose to provide a detailed comparison of the judgements, rather I will analyze the merits of the majority ruling followed by an outlook on how the judgement is likely to hold up as the law and technologies emerge.

The unfortunate circumstances which brought the appellant, Mr. Jarvis, a former high school teacher before the court, emanated from his secret recordings of female students using a camera hidden within a pen.  The students were captured while engaged in regular activities in the hallways and classrooms.  Most of these recording focused on their upper bodies and breasts. The students were not aware of the recordings, nor did they consent.   He was reported and subsequently charged with voyeurism contrary to section162 (1) of the Criminal Code.³

There were conflicting decisions in the lower courts and the Court of Appeal. At trial, the defendant was acquitted because the trial judge was not convinced beyond a reasonable doubt that the recordings were made for a sexual purpose even though the girls were found to have a reasonable expectation of privacy. The Court of Appeal reversed the finding of the trial court on the basis that there was no reasonable expectation of privacy in the public spaces of a school since privacy is about a right to exclude others from private spaces and freedom from being observed.  Essentially, there could be no right to privacy here because the students were in a common area of the school and were being recorded in any event by security cameras.⁴

However, they were unanimous in finding that the videos were made for a sexual purpose.   The Court of Appeal’s analysis invokes the risk aversion framework which a person in an ostensibly public place averts to the risk of being recorded and relinquishes any reasonable expectation of privacy regardless of the nature of the intrusion. In relation the section 162 it would then shift the burden of proof to the victim. This view is erroneous and is akin to a person who agrees to speak to another, is by extension, agreeing to the conversation being recorded. It is my considered view that the case should never have reached the Supreme Court since a sexual predator should never have been allowed to escape punishment because of a difficulty in expanding the definition of a single word.  Thankfully, the Supreme Court rendered a decision which corrected this logical fallacy.

The Supreme Court

When the matter was heard before the Supreme Court the sole ground of appeal was whether the Court of Appeal erred in finding that the students recorded by Mr. Jarvis were not in circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1)  of the Criminal Code.⁵

Ultimately, the Supreme Court ruled that the students had a reasonable expectation of privacy in that, they would not be recorded in the manner they were. The court noted that the students were in a trust relationship with the accused that was breached in his recording of them. He focused on the most intimate parts of their bodies, and this violated any reasonable expectation of privacy they may have held. In addition to this, there subsisted at the relevant time a policy of the school which prohibited any such recording. While the majority decision delivered by Chief Justice Richard Wagner and concurring delivered by Justice Malcolm Rowe parted ways on two issues (1) whether s 8 Charter jurisprudence can inform interpretation of reasonable expectation of privacy in section 162(1) of the Criminal Code; and (2) the appropriate contextual factors in assessing reasonable expectation of privacy in section 162(1). ⁶

Overall, the court adopted the interpretation of privacy along the lines of those used jurisprudentially in interpreting section 8 of the Canadian Charter of Rights but hastened to say its approach was more nuanced. A section 8 interpretation should not inform the law because the conceptual framework for defining Charter rights is different, mainly because the interpretation of section eight evolves over time, unlike section 162 which remains fixed.

A fundamental difference is that section eight protects individuals against the state and state actors while the relevant provision is meant to respond to privacy breaches as between individuals.  Moreover, the interests protected by s. 8 of the Charter include personal privacy, territorial privacy and informational privacy, whereas the reasonable expectation of privacy under s. 162(1)  relates only to the protection of one’s physical image. Finally, Charter values are a legitimate interpretive aid only in cases of ambiguity, and in this case, s. 162(1)  is not legally ambiguous.⁷

What is reasonable expectation of privacy?

In arriving at a working definition, the court outlined a non exhaustive list of what should be contemplated in arriving at whether circumstances give rise to a reasonable expectation of privacy. They are as follows:

1. The location the person was in when she was observed or recorded.
2. The nature of the impugned conduct, that is, whether it consisted of observation or recording.
3. Awareness of or consent to potential observation or recording.
4. The way the observation or recording was done
5. The subject matter or content of the observation or recording.
6. Any rules, regulations or policies that governed the observation or recording in question.
7. The relationship between the person who was observed or recorded and the person who did the observing or recording.
8. The purpose for which the observation or recording was done.
9. The personal attributes of the person who was observed or recorded.

While the concurring judgements agreed with four of the principles highlighted above, it relegated numbers two three, eight, and nine to sentencing considerations.

The court broke down the concept of privacy in the ordinary sense of the word, the meaning in the context of the section as well as within the scope of the Charter. In the regular sense of the word, it stepped outside of the spatial dimension by rejecting the Court of Appeal’s analysis that sought to relegate the application of the section to “private spaces.” On the construction of the ONCA women who were observed in public spaces were open to consumption despite the lack of consent. In its rejection of that view, it provided various examples that indicated that there remain particularly important privacy concerns in the public domain such that one does not expect to be the subject of an up-skirt recording while sitting on a park bench. Therefore, even though we expect greater privacy in the private sphere the court opined that “simply because a person is in circumstances where she does not expect complete privacy does not mean that she waives all reasonable expectations of privacy.  Of course, while we expect to be observed in public, we do not give consent to nothing more than the occasional or fleeting observation by strangers.

This contextual and approach bears on our common sense understanding that while a person may expect to be subject to scrutiny while in public it does not then mean that secret recordings having the potential to be manipulated and disseminated would be expected.  a person who consents to being observed by another engaging in sexual activity does not by doing so, expect that the activity would be recorded by another. This would be a clear breach of that person’s privacy. Additionally, one who captures the images of unsuspecting sunbathers would also raise similar privacy concerns. On the other hand, there will be situations where a recording may be made for sexual purposes but does not breach an expectation of privacy. In those situations, the offence would not be made out. Similarly, it noted that while surreptitiousness may lead to a breach of privacy it is but one consideration in arriving at a breach of a reasonable expectation of privacy. In the context of the section the court maintained that privacy must be observed in the ordinary and contextual sense. “The immediate statutory context of the words “circumstances that give rise to a reasonable expectation of privacy” lends further support to the view that this element of the offence is not governed solely or primarily by a person’s physical location and does not limit the commission of the offence to traditionally private spaces.”⁸ Additionally, the court opined that if we step outside of where a person can expect to be nude or engaged in sexual activity, a person can still have a reasonable expectation of privacy as understood in paragraph (b) of the section.  When we read the section narrowly only to include private spaces, it would be to misconstrue Parliament’s intention.

By providing several examples the Supreme Court has fixed our attention that circumstances of each case will be the guiding principle going forward. We cannot read the law in such a narrow way that “private” guarantees certain protections but “public” means a waiver of rights. If that were to subsist at law, it would leave a vanishingly small role for para. (b) and entirely negate para. (c) of s. 162(1) — the paragraphs that are most explicitly concerned with behaviours that impact on sexual integrity.⁹

Section 8 of the Charter

While the majority indicated that a section 8 analysis in relation to our understanding of privacy, should never dominate an interpretation of section 162, it nonetheless sought a considerable amount of guidance in assessing how courts have sought to triangulate the meaning of privacy vis-à-vis what a reasonable expectation of privacy entails.

The mere fact that the same terminology is used by Parliament in section 8 allowed the court to follow logically that it was instructive in our understanding of our concept of reasonable expectation of privacy.

The court  indicated that the s. 8  jurisprudence recognizes that the inquiry into whether an individual has a reasonable expectation of privacy vis-à-vis the state with respect to a certain subject matter may be informed, in part, by considering the individual’s privacy expectations.  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. This lends support to the view that the jurisprudence on s. 8  of the Charter  may be useful in resolving the question raised in the case.¹⁰

One on the most significant impact of the section 8 analysis lies in how it allows the court to account for technological advancement. The understanding of privacy in the ordinary sense must be aligned with the development of new recording technology, and its increasing availability on the retail market, where individuals are being recorded by hidden cameras in situations where such recording was previously unheard of. Therefore, the retention of privacy today means, we know cameras exists and has become a part of our everyday lives. We know that the chances are high of being recorded, however one does not simply avert to the risk of being recorded by going into a public place.

Privacy interests contemplated in a Charter analysis are also useful in this context as it envisages personal, territorial, and informational privacy interests. These considerations lend themselves to how we may understand a person’s reasonable expectation of privacy with the scope of section 162.  Meaning that all privacy interest in respect of the state and from individuals indicate a high level of respect for autonomy, dignity, and integrity. In addressing the issue of informational privacy, it was outlined that as with the wrong contemplated by the Charter, individuals in this context retain the right to the kinds of information is communicated to others and is intimately tied to our personal dignity. Such that when the court addresses a breach of the reasonable expectation of privacy it must consider the kinds of information in issue.  Insofar as section 162 touches and concerns privacy, the Charter reminds us that we must be mindful of how the foregoing privacy interest are affected even where spatial privacy is not necessarily in issue. Privacy therefore then, is not an all or nothing concept.

The Dissent

There were only a few distinctions between the majority and dissenting view. Namely, that different interpretive principles inform the Charter and therefore to be read in the same way is a misapplication of section 162.

It risks the creation of a new law outside of the contemplation of the legislature. The Charter contemplates only those circumstances of state intervention while section 162 is meant to address the breach of privacy and sexual integrity of one person to another by recordings and observations. Personal privacy interests are not the same as territorial privacy. Therefore, the words used in 162 referring to “place” can only be contemplated by the expectation one has in one’s image and not one’s surroundings.¹¹

The other marked departure concerned the use of the categories in determining when there is a reasonable expectation of privacy.  Of the nine, only four are useful at this stage.  They are (1, 4, 5, 6). The other is more useful when considering an appropriate sentence.

In the final analysis the court was moved to find that the student’s reasonable expectation of privacy was breached in the following ways.

1. These were high school students who exist in a trust relationship with those around them. Therefore, they should not be subjected to this type of intrusion.
2. The school board’s policy prohibited the recording made by the accused.
3. The recordings were done in a surreptitious manner. There was no similarity with the general recordings made by security cameras.
4. Because the recordings focused on the most intimate areas of the girls’ bodies there was a heightened breach of the reasonable expectation of privacy in relation to those body parts.
5. Students being recorded has greater privacy concerns than mere observation.
6. Even though reasonable expectation of privacy is lower in the common areas of the school. The school is not a “public” place and therefore different privacy issues abound.
7. There was a direct breach of the students’ reasonable expectation of privacy in recording them for sexual gratification.

I am forced to agree with the majority’s decision for several reasons.  Firstly, it provides clear guidelines for future cases as   it approaches the reading of the section in a contextual way.  It   makes it easier for privacy breaches to be successful in spaces that are traditionally considered public.

The current ruling offers more vigorous protection against privacy breaches by those who exercise their rights in traditionally public spaces.

The decision is adept in its recognition of the weaponization of technology. The Supreme Court measured like for like and noted that there is little to be achieved in the interpretation of the law by equating the recordings in the same way. It explains the deleterious effects of accepting the view that since there were cameras in the hallway one’s reasonable expectation of privacy becomes incongruous.  By doing so it acknowledged that the nature of the technology should inform the contextual analysis. The ever-growing use of technology presents greater risks of new forms of sexual violence.

What Jarvis does is to indicate that it does not matter that the victim may have consented to the photograph proper, but a person would have a reasonable expectation of privacy that those photographs are not shared with the world. Recording an image engages deeper privacy concerns especially since once shared a person’s sexual integrity is affected in a permanent way. It may become embedded in hard drives world over and can be consumed over and over. In section 162. (1), the law achieves harmony, and it would be illogical for the court to have arrived at any other conclusion.

All recording technology is not the same nor for the same purpose therefore where it is used in the way that the accused did, it must be separated from the purpose of the security cameras. Any other view of the section is nonsensical.

We must adopt a normative view of privacy to match the pace of technological changes and how that will inform what our reasonable expectation of privacy is. This means that the law will remain adaptive, as what technology may be capable of today will be far more advanced tomorrow. This protean approach encourages law as flexible, changeable, and adaptable.

Secondly, it envisages that it did not matter that the recordings took place in a school, nor did it matter that it was the teacher who did so. The court would have reached the same decision were the events perpetrated in an open park by a stranger. The Supreme Courts ruling makes more sense as it allows us to predict that in cases to come there is little fear that the ruling will be relegated to children of school age or by extension within similar circumstances. Future courts are therefore open to a wide interpretation of the ruling with seeks to capture a wide cross section of privacy breaches.

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Footnotes

1. 1.  R. v. Jarvis, [2019] 1 S.C.R. 488 (S.C.C.)
   2. Ibid.
   3. Voyeurism

      162(1) Everyone commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

      (a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity.

      (b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or

      (c) the observation or recording is done for a sexual purpose.

   4.  R. v. Jarvis, ONCA 2017 ,778
   5. Ibid.
   6. Ibid.
   7. Ibid.
   8.  Ibid.
   9. Ibid.
   10. Ibid.
   11. Ibid.