Today the Supreme Court of Canada established clear parameters regarding when individuals can expect a reasonable expectation of privacy.
In R. v. Jarvis, 2019 SCC 10, the Supreme Court held that the following non-exhaustive list of considerations may assist a court in determining whether a person was observed OR recorded in circumstances that give rise to a reasonable expectation of privacy:
(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 manner in which 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.
In addition, the Supreme Court affirmed that the values that underlie privacy “apply equally if not more strongly in the case of young persons”.
In the process, and almost as a side note for those interested primarily in privacy law, the Supreme Court overturned the Ontario Court of Appeal and convicted a high school English teacher of the relatively new criminal offence voyeurism (which was introduced into as section 162(1) of the Criminal Code in 2005) based on videos taken of students in common area school locations by the teacher of his pen camera.
This decision has implications broader to interpretation of section 162(1) of the Criminal Code and assisting prosecutors in convicting individuals of voyeurism, but what will be interesting in future decisions is the extent to which this decision will impact decisions and commentary based on section 8 of the Charter of Rights and Freedoms (which deals with reasonable expectation of privacy vis-à-vis the state – specifically that Everyone has the right to be secure against unreasonable search or seizure), and possibly how the decision will impact future civil claims based on breaches of privacy.
One issue where the Supreme Court was divided is the extent to which jurisprudence of section 8 of the Charter should impact interpretation of section 162(1) of the Criminal Code. The majority decision, written by the Chief Justice, considered section 8 of the Charter, while Justices Côté, Brown and Rowe’s decision emphasized that the purpose of section 8 and section 162(1) are fundamentally at odds and jurisprudence regarding section 8 of the Charter should have no application to section 162(1) of the Criminal Code.
This point of disagreement aside, Canadian courts will be required to consider privacy matters in a variety of contexts going forward, and the decision in R. v. Jarvis will likely be found to be instructive for some time.
In any event, today’s decision was a win for privacy advocates and vulnerable persons, and a decided loss for creepy teachers.