R v Jarvis, 2019 SCC 10
In this recent case, the Supreme Court of Canada considered what it means for someone to have a reasonable expectation of privacy in the context of s. 162(1) of the Criminal Code.
Mr. Jarvis, a high school teacher was charged with the offence of voyeurism for secretly recording his female students with a camera hidden inside a pen.
The offence of voyeurism is committed where a person surreptitiously observes or makes a visual recording of another person who is in circumstances that give rise to a reasonable expectation of privacy, if that observation or recording is done for a sexual purpose.
The sole issue being decided by the Supreme Court on appeal was whether the Ontario Court of Appeal erred in finding that the students were not in circumstances that give rise to a reasonable expectation of privacy.
The Court unanimously found that the high school students did in fact have a reasonable expectation of privacy in the circumstances, and Mr. Jarvis was convicted of voyeurism.
The majority took the position that in determining whether someone has a reasonable expectation of privacy, courts must look at the entire context in which the observation or recording took place. Simply being in a public or semi-public place will not automatically negate an individual’s expectation of privacy.
Rather, relevant considerations may include the location; the form of the alleged invasion of privacy; the nature of the observation or recording; awareness of, or consent to the observation or recording; the activity that the person was engaged in when observed or recorded; any rules or policies governing the observation or recording; the relationship between the persons; and the subject matter of the recording or observation.
Of particular significance, was the majority’s determination that section 8 Charter jurisprudence could help to inform the content and meaning of “reasonable expectation of privacy” in s. 162(1) of the Criminal Code.
Although Jarvis focused on the Criminal Code, this decision has potential far-reaching implications for other areas of the law, such as privacy-related civil torts and workplace investigations. In addition to the recognition of new privacy torts and other recent developments in the common law, the Supreme Court’s willingness to import Charter privacy principles into other legal contexts may have a significant impact on the protection of individual privacy rights.