On February 14, 2019, the Supreme Court of Canada issued its decision in R. v. Jarvis,  SCC 10, a case involving a criminal charge of voyeurism against a teacher. The court ruled that students have an expectation of privacy while in the classroom and at school. In an electronic age where technologies exist that allow ordinary activities to be recorded continuously and without the knowledge of the subjects, the decision has significant implications for standards of conduct within and outside the school context.
The accused was a high school English teacher who used a camera concealed inside a pen to secretly record his female students in the classroom. While the students were largely engaged in ordinary school related activities, the footage revealed a particular focus on the faces, upper body and chests of the female students. The students were unaware the footage was being created by their teacher.
The teacher was charged under the Criminal Code of Canada with voyeurism, which makes it an offense to covertly observe or make a recording of another person for a sexual purpose and in circumstances that give rise to a reasonable expectation of privacy.
Noting that privacy is not an all-or-nothing concept, the court concluded that the mere fact that the students had been observed or recorded in a public or semi-public place did not necessarily negate the existence of an expectation of privacy. When determining if an expectation of privacy exists, a contextual approach is required including consideration of factors such as the person’s location, the form of the invasion of privacy (recording or observation), the activity in which the person was engaged when recorded or observed and the part of the person’s body that is the focus of the recording.
The court determined that there was no doubt in the circumstances of this case that the students had a reasonable expectation of privacy and should not have been recorded by their teacher in the manner that they were. Particular weight was placed on the fact that: the recordings were of teenage students; they focused primarily on the bodies of the students, particularly their breasts; and the recordings were made by an individual, their teacher, who owed them a duty of trust. Although not essential to the court’s finding that an expectation of privacy existed, the fact that the school board had a policy that prohibited such recordings was also relied on as supporting the existence of an expectation of privacy.
This case represents a further advance in the legal recognition of individual rights of privacy. Despite the existence of technologies that easily and inexpensively allow individuals to surreptitiously record their co-workers, students, patients, neighbours and others etc., such practices may well represent an infringement on the individual’s right to privacy.
Many service related organizations regularly encounter issues with customers, employees and community members seeking to surreptitiously record conversations, meetings and interactions for a variety of purposes. In the wake of this decision, organizations that struggle with these issues may wish to consider adopting a policy statement about acceptable and unacceptable uses of electronic recording technologies within their facilities. The existence of such a policy statement is one factor that supported the conclusion that an expectation of privacy existed in this case.
The importance of the case
While this case concerns an interpretation of voyeurism as an offence under the Criminal Code, a determination that individuals have an expectation of privacy even while in public or semi-public places has much broader implications both within and outside the education sector. This case provides useful validation of the fact that surreptitiously recording another person’s activities is privacy invasive, and, in appropriate cases, may carry legal consequences. Not every such practice will support a conviction for voyeurism, but the Court’s decision in this case helps to inform what will be considered reasonable practices not just within Canadian schools, but also within other institutions and workplaces.
If you have any questions regarding this article or any privacy and access to information issue, please contact Suzanne Kennedy.