R. v. Jarvis

R. v. Jarvis
Collection
Supreme Court Judgments
Date
2019-02-14
Neutral citation
2019 SCC 10
Report
[2019] 1 SCR 488
Case number
37833
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from
Ontario
Subjects
Criminal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488
Appeal Heard: April 20, 2018 Judgment Rendered: February 14, 2019 Docket: 37833
Between:
Her Majesty The Queen
Appellant
and
Ryan Jarvis
Respondent
- and -
Attorney General of British Columbia, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Privacy Commissioner of Canada, Canadian Civil Liberties Association, Ontario College of Teachers, Information and Privacy Commissioner of Ontario, Women’s Legal Education and Action Fund Inc. and Criminal Lawyers’ Association (Ontario)
Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
Reasons for Judgment: (paras. 1 to 92)
Wagner C.J. (Abella, Moldaver, Karakatsanis, Gascon and Martin JJ. concurring)
Concurring Reasons: (paras. 93 to 148)
Rowe J. (Côté and Brown JJ. concurring)
R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488
Her Majesty The Queen Appellant
v.
Ryan Jarvis Respondent
and
Attorney General of British Columbia,
Samuelson‑Glushko Canadian Internet Policy and Public Interest Clinic,
Privacy Commissioner of Canada,
Canadian Civil Liberties Association,
Ontario College of Teachers,
Information and Privacy Commissioner of Ontario,
Women’s Legal Education and Action Fund Inc. and
Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Jarvis
2019 SCC 10
File No.: 37833.
2018: April 20; 2019: February 14.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
on appeal from the court of appeal for ontario
Criminal law — Voyeurism — Elements of the offence — Circumstances that give rise to reasonable expectation of privacy — Accused teacher using concealed camera to make surreptitious video recordings of female high school students engaging in ordinary school-related activities in common areas of school — Most video recordings focusing on faces, upper bodies and breasts of students — Students not aware of recording — Accused charged with voyeurism — Whether students recorded by accused were in circumstances giving rise to reasonable expectation of privacy — Criminal Code, R.S.C. 1985, c. C-46, s. 162(1) .
The accused was an English teacher at a high school. He used a camera concealed inside a pen to make surreptitious video recordings of female students while they were engaged in ordinary school-related activities in common areas of the school. Most of the videos focused on the faces, upper bodies and breasts of female students. The students were not aware that they were being recorded by the accused, nor did they consent to the recordings. A school board policy in effect at the relevant time prohibited the type of conduct engaged in by the accused.
The accused was charged with voyeurism under s. 162(1) (c) of the Criminal Code . That offence 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 the observation or recording is done for a sexual purpose. At trial, the accused admitted he had surreptitiously made the video recordings. As a result, only two questions remained: whether the students the accused had recorded were in circumstances that give rise to a reasonable expectation of privacy, and whether the accused made the recordings for a sexual purpose. While the trial judge answered the first question in the affirmative, he acquitted the accused because he was not satisfied that the recordings were made for a sexual purpose. The Court of Appeal unanimously concluded that the trial judge had erred in law in failing to find that the accused made the recordings for a sexual purpose. Nevertheless, a majority of the Court of Appeal upheld the accused’s acquittal on the basis that the trial judge had also erred in finding that the students were in circumstances that give rise to a reasonable expectation of privacy. The Crown appeals to the Court as of right on the issue of whether the students recorded by the accused were in circumstances that give rise to a reasonable expectation of privacy.
Held: The appeal should be allowed and a conviction entered.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon and Martin JJ.: The students recorded by the accused were in circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code .
Circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code are circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred. The inquiry should take into account the entire context in which the impugned observation or recording took place. Relevant considerations may include (1) the location the person was in when she was observed or recorded, (2) the nature of the impugned conduct (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, and (9) the personal attributes of the person who was observed or recorded. This list of considerations is not exhaustive and not every consideration will be relevant in every case.
The fact that it is an element of the offence in s. 162(1)(c) that observation or recording be done for a sexual purpose does not make it inappropriate to consider the purpose of the observation or recording in assessing whether it was done in breach of a reasonable expectation of privacy. In some cases, observation or recording may not breach expectations of privacy despite having a sexual purpose. In other cases, observation or recording may be an obvious breach of privacy regardless of its purpose and it can ground a conviction under s. 162(1) if the other elements of the offence are made out. Similarly, although the surreptitiousness of the observation or recording is an element of the offence in s. 162(1), this does not mean that it can never be considered in assessing whether the person who was observed or recorded had a reasonable expectation of privacy.
“Privacy”, as ordinarily understood, is not an all-or-nothing concept, and being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording. Rather, whether observation or recording would generally be regarded as an invasion of privacy depends on a variety of factors, which may include a person’s location, the form of the alleged invasion of privacy, the nature of the observation or recording, the activity in which a person is engaged when observed or recorded and the part of a person’s body that is the focus of the recording. The fact that a variety of factors may influence whether a person would expect not to be observed or recorded is also consistent with Parliament’s choice to express the element of the offence by reference to the “circumstances” that give rise to a reasonable expectation of privacy. Had Parliament intended to limit the types of circumstances that can be considered, it would have done so expressly.
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. Paragraph (a) of s. 162(1) expressly circumscribes the scope of the prohibited observation or recording by reference to location and it would be incongruous with that paragraph to read the requirement that the person who is observed or recorded be in circumstances that give rise to a reasonable expectation of privacy as also being governed by location. Furthermore, the inclusion of paras. (b) and (c) in s. 162(1) indicates that Parliament understood that a person could have a reasonable expectation of privacy somewhere other than in a place where nudity or explicit sexual activity can reasonably be expected or is in fact taking place.
Parliament’s object in enacting the voyeurism offence was to protect individuals’ privacy and sexual integrity, particularly from new threats posed by the abuse of evolving technologies. Reading the expression “circumstances that give rise to a reasonable expectation of privacy” narrowly would undermine Parliament’s intention that the offence prohibit surreptitious observation or visual recording that amounts to sexual exploitation or that represents the most egregious breaches of privacy.
The jurisprudence pertaining to s. 8 of the Canadian Charter of Rights and Freedoms is also instructive in interpreting s. 162(1). Parliament must be understood has having chosen the words “reasonable expectation of privacy” in s. 162(1) purposefully and with the intention that the existing jurisprudence on this concept would inform the content and meaning of those words. In addition, the s. 8 case law represents a rich body of judicial thought on the meaning of privacy in our society. Far from being unmoored from our ordinary perceptions of when privacy can be expected, judgments about privacy expectations in the s. 8 context are informed by our fundamental shared ideals about privacy as well as our everyday experiences.
In this case, when the entire context is considered, there can be no doubt that the students’ circumstances give rise to a reasonable expectation that they would not be recorded in the manner they were. In particular, the subjects of the video recordings were teenage students at a high school. They were recorded by their teacher in breach of the relationship of trust that exists between teachers and students as well as in contravention of a formal school board policy that prohibited such recording. Significantly, the videos had as their predominant focus the bodies of students, particularly their breasts. In recording these videos, the accused acted contrary to the reasonable expectations of privacy that would be held by persons in the circumstances of the students when they were recorded.
Per Côté, Brown and Rowe JJ.: There is agreement that the students in this case were in circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code .
However, s. 8 Charter jurisprudence should not inform the interpretation of s. 162(1). First, the conceptual framework for defining Charter rights should remain distinct from that used to define the scope of Criminal Code offences. To interpret the wording in s. 162(1) by reference to the s. 8 jurisprudence would put the judiciary in the position of creating new common law offences, despite their abolition by s. 9 (a) of the Criminal Code . Section 8 Charter jurisprudence evolves but the meaning in s. 162(1) is intended to remain fixed as of the time of its enactment. Second, the purpose and function of s. 8 and s. 162(1) are fundamentally at odds. The power imbalance of the police as agents of the state vis-à-vis a citizen that is at the heart of the preoccupation under s. 8 is not present under s. 162(1), as that provision protects invasions of privacy perpetrated by one individual against another. Third, 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.
A multi-factored test to decide whether there is a reasonable expectation of privacy in the context of s. 162(1) should not be adopted. The offence of voyeurism is an extension of the criminal law to protect well-established interests of privacy, autonomy and sexual integrity in light of threats posed by new technologies that encroach upon them. Because voyeurism is a sexual offence, a reasonable expectation of privacy in the context of s. 162(1) should be interpreted in light of the harms contemplated in related provisions in the scheme for sexual offences in Part V of the Criminal Code . In the context of the voyeurism offence, “privacy” should be interpreted with regard to personal autonomy and sexual integrity.
An individual’s privacy interest under s. 162(1) can only be infringed if they are recorded or observed in a way that both causes them to lose control over their image and also infringes their sexual integrity. This conjunctive test accords with what Parliament sought to protect by creating the offence. The ability to maintain control over what personal visual information is shared, and with whom, is a facet of privacy linked to personal autonomy. While the surreptitiousness of the observation or recording may signal circumstances that give rise to a reasonable expectation of privacy, the two elements remain distinct. The surreptitiousness of the observation or recording improperly removes the individual’s ability to maintain control over how they are observed, and, because of its permanence, a recording compounds the denial of the subject’s autonomy by giving the voyeur repeated access to the observations.
Whether the observation or recording is sexual in nature such that it infringes the sexual integrity of the subject should be decided on an objective standard and considered in light of all the circumstances. While the intent of the perpetrator may be relevant, it is not determinative. The sexual purpose inquiry under para. (c) of s. 162(1) is distinct from the determination of a violation of sexual integrity under the reasonable expectation of privacy analysis. An observation or recording will be done for a sexual purpose where the subject of the observation or recording is reasonably perceived as intended to cause sexual stimulation in the observer. An interpretation of sexual purpose that includes sexual gratification is consistent with the interpretation of the same phrase in other sections of the Criminal Code .
In this case, the students had a reasonable expectation of privacy regarding how their bodies would be observed in the classrooms and hallways of their school. The visual information was subject to their limitation and control, and the technology used by the accused allowed him to take videos of the clothed breasts of his students — for extended periods of time — in angles and in proximity that went beyond the access that the students allowed in this setting, thus infringing their autonomy. The recordings were also objectively sexual in nature. The focus of the recordings was on the young women’s intimate body parts, at close range. In addition, and while not determinative, the recordings were made for a sexual purpose. The combination of these factors leads to the conclusion that by surreptitiously recording images of their breasts, the accused infringed the sexual integrity of the students.
Cases Cited
By Wagner C.J.
Referred to: R. v. Rudiger, 2011 BCSC 1397, 244 C.R.R. (2d) 69; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Dyment, [1988] 2 S.C.R. 417; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Srivastava v. Hindu Mission of Canada (Québec) Inc., [2001] R.J.Q. 1111; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Edwards, [1996] 1 S.C.R. 128; Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Wise, [1992] 1 S.C.R. 527; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733; R. v. Sandhu, 2018 ABQB 112, 404 C.R.R. (2d) 216; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211; R. v. M. (M.R.), [1998] 3 S.C.R. 393; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. S.A.B, 2003 SCC 60, [2003] 2 S.C.R. 678; R. v. Taylor, 2015 ONCJ 449; A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567; R. v. Audet, [1996] 2 S.C.R. 171; Toronto Star Newspaper Ltd. v. Ontario, 2012 ONCJ 27, 255 C.R.R. (2d) 207.
By Rowe J.
Referred to: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Perka v. The Queen, [1984] 2 S.C.R. 232; Sharpe v. Wakefield (1888), 22 Q.B.D. 239; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; Frey v. Fedoruk, [1950] S.C.R. 517; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743; University Health Network v. Ontario (Minister of Finance) (2001), 208 D.L.R. (4th) 459; R. v. Chartrand, [1994] 2 S.C.R. 864; R. v. Rudiger, 2011 BCSC 1397, 244 C.R.R. (2d) 69; Willick v. Willick, [1994] 3 S.C.R. 670; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236; R. v. Drapeau (1995), 96 C.C.C. (3d) 554; R. v. Chase, [1987] 2 S.C.R. 293; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. S. (P.L.), [1991] 1 S.C.R. 909; R. v. V. (K.B.), [1993] 2 S.C.R. 857; R. v. Litchfield, [1993] 4 S.C.R. 333; R. v. Hinchey, [1996] 3 S.C.R. 1128; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439; R. v. Larue, 2003 SCC 22, [2003] 1 S.C.R. 277; R. v. Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60; R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; R. v. Hewlett, 2002 ABCA 179, 167 C.C.C. (3d) 425; R. v. L.A.C., 2005 ABPC 217, 386 A.R. 102; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Landry, [1986] 1 S.C.R. 145; Semayne’s Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194; R. v. Morrisey, 2011 ABCA 150; R. v. Colley, 2009 BCCA 289, 273 B.C.A.C. 107; R. v. M.B., 2014 QCCA 1643.
Statutes and Regulations Cited
An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32, preamble.
Bill C‑2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, 1st Sess., 38th Parl., 2004‑2005 (assented to July 20, 2005).
Canadian Charter of Rights and Freedoms , ss. 8 , 24(2) .
Criminal Code , R.S.C. 1985, c. C‑46 , Parts V, XI, ss. 9(a), 151, 152, 153 ,153.1, 162, 162.1(1), 177, 276.3, 278.1, 278.5, 430, 486, 486.4, 486.5.
Youth Criminal Justice Act , S.C. 2002, c. 1, s. 110 .
Authors Cited
Canada. Department of Justice. Voyeurism as a Criminal Offence: A Consultation Paper. Ottawa, 2002.
Canada. Department of Justice. Voyeurism As A Criminal Offence: Summary of the Submissions, October 28, 2002 (online: http://www.justice.gc.ca/eng/cons/voy/final.html; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC10_1_eng.pdf).
Canada. House of Commons. House of Commons Debates, vol. 138, No. 46, 2nd Sess., 37th Parl., January 27, 2003, p. 2692.
Canada. Library of Parliament. Parliamentary Information and Research Service. Bill C‑2: An Act to Amend the Criminal Code (Protection of Children and Other Vulnerable Persons) and the Canada Evidence Act, Legislative Summary LS-480E, by Robin MacKay, Law and Government Division, October 13, 2004, revised June 16, 2005.
Craig, Elaine. Troubling Sex: Towards a Legal Theory of Sexual Integrity. Vancouver/Toronto: UBC Press, 2012.
Gavison, Ruth. “Privacy and the Limits of the Law” (1980), 89 Yale L.J. 421.
Gavison, Ruth. “Feminism and the Public/Private Distinction” (1992), 45 Stan. L. Rev. 1.
Jones, Brock. “Jarvis: Surely Schoolchildren Have A Reasonable Expectation of Privacy Against Videotaping for a Sexual Purpose?” (2017), 41 C.R. (7th) 71.
LaFave, Wayne R. and Austin W. Scott, Jr. Substantive Criminal Law, vol. 1, 2nd ed. St. Paul, Minn.: West Publishing Co., 1986.
Mewett, Alan W. and Morris Manning. Mewett & Manning on Criminal Law, 2nd ed. Toronto: Butterworths, 1985.
Parker, Richard B. “A Definition of Privacy” (1974), 27 Rutgers L. Rev. 275.
Paton‑Simpson, Elizabeth. “Privacy and the Reasonable Paranoid: The Protection of Privacy in Public Places” (2000), 50 U.T.L.J. 305.
Stewart, Hamish C. Sexual Offences in Canadian Law. Aurora, Ont.: Canada Law Book, 2004 (loose‑leaf updated October 2018, release 31).
Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014.
Westin, Alan F. Privacy and Freedom. Atheneum: New York, 1970.
APPEAL from a judgment of the Ontario Court of Appeal (Feldman, Watt and Huscroft JJ.A.), 2017 ONCA 778, 139 O.R. (3d) 754, 41 C.R. (7th) 36, 356 C.C.C. (3d) 1, 396 C.R.R. (2d) 348, [2017] O.J. No. 5261 (QL), 2017 CarswellOnt 15528 (WL Can.), affirming a decision of Goodman J., 2015 ONSC 6813, 345 C.R.R. (2d) 103, 25 C.R. (7th) 330, [2015] O.J. No. 5847 (QL), 2015 CarswellOnt 17226 (WL Can.). Appeal allowed.
Christine Bartlett‑Hughes and Jennifer Epstein, for the appellant.
Zachary Kerbel, Saman Wickramasinghe and Jennifer Micallef, for the respondent.
Written submissions only by Lara Vizsolyi, for the intervener Attorney General of British Columbia.
Jane Bailey and David Fewer, for the intervener Samuelson‑Glushko Canadian Internet Policy and Public Interest Clinic.
Written submissions only by Regan Morris and James Nowlan, for the intervener Privacy Commissioner of Canada.
Jonathan C. Lisus and Zain Naqi, for the intervener Canadian Civil Liberties Association.
Caroline R. Zayid, Adam Goldenberg and Caroline H. Humphrey, for the intervener Ontario College of Teachers.
Stephen McCammon, for the intervener Information and Privacy Commissioner of Ontario.
Gillian Hnatiw, Karen Segal and Alex Fidler-Wener, for the intervener Women’s Legal Education and Action Fund Inc.
Matthew Gourlay and Kate Robertson, for the intervener Criminal Lawyers’ Association (Ontario).
The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon and Martin JJ. was delivered by
The Chief Justice —
I. Overview
[1] In 2005, Parliament enacted a new criminal offence called voyeurism in s. 162(1) of the Criminal Code , R.S.C. 1985, c. C-46 . This offence is committed when 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 the observation or recording is done in one of the three situations described in paras. (a) through (c) of s. 162(1). Section 162(1)(c), in particular, applies when the observation or recording is done for a sexual purpose.
[2] Mr. Ryan Jarvis, the respondent in this appeal, was charged with voyeurism contrary to s. 162(1) (c) of the Criminal Code after he used a camera concealed inside a pen to make video recordings of female students at the high school where he was a teacher. Mr. Jarvis recorded students while they were engaged in ordinary school-related activities in common areas of the school, including classrooms and hallways. Most of the videos focused on the faces and upper bodies of female students, particularly their chests. The students did not know that they were being recorded.
[3] Mr. Jarvis was acquitted at trial because the trial judge was not satisfied beyond a reasonable doubt that he had made the recordings for a sexual purpose. The acquittal was upheld by a majority of the Ontario Court of Appeal. While the Court of Appeal was of the unanimous opinion that Mr. Jarvis had made the videos for a sexual purpose, the majority held that the students recorded by him were not in circumstances that give rise to a reasonable expectation of privacy, as required for a conviction under s. 162(1). A dissenting judge was satisfied that the students recorded by Mr. Jarvis were in circumstances that give rise to a reasonable expectation of privacy and would have entered a conviction on that basis.
[4] The Crown now appeals to this Court as of right. The only issue in the appeal is 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] In my view, circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code are circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred. To determine whether a person had a reasonable expectation of privacy in this sense, a court must consider the entire context in which the observation or recording took place. The list of considerations that may be relevant to this inquiry is not closed. However, in any given case, these considerations may include the location where the observation or recording occurred; the nature of the impugned conduct, that is, whether it consisted of observation or recording; the awareness or consent of the person who was observed or recorded; the manner in which the observation or recording was done; the subject matter or content of the observation or recording; any rules, regulations or policies that governed the observation or recording in question; the relationship between the parties; the purpose for which the observation or recording was done; and the personal attributes of the person who was observed or recorded.
[6] As I will explain, there can be no doubt in the case at bar that the students recorded by Mr. Jarvis were in circumstances in which they would reasonably have expected not to be the subject of videos predominantly focused on their bodies, particularly their breasts — and a fortiori not to be the subject of such videos recorded for a sexual purpose by a teacher. I therefore conclude that the students recorded by Mr. Jarvis were in circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code . I would allow the appeal and enter a conviction.
II. Background
[7] At the times relevant to the charge in the case at bar, Mr. Jarvis was an English teacher at a high school in London, Ontario. In June 2011, a fellow teacher informed the principal of the school that he believed Mr. Jarvis was surreptitiously recording female students at the school using a camera hidden inside a pen. The principal became concerned for the safety of the students. The following day, the principal twice observed Mr. Jarvis standing near a female student while holding up a pen that emitted a red light from the top, non-writing end. On the second occasion, the principal secured the pen from Mr. Jarvis and gave it to the police.
[8] The pen seized from Mr. Jarvis performs a number of functions. It can be used to write. It is also outfitted with a camera that can be used to record videos with audio. The pen does not have a screen on which the user can see what is being or has been recorded. The camera does not have the ability to zoom in and out while recording. Videos recorded with the camera can be downloaded to a computer for viewing and editing. In these reasons, I will refer to this device as a “pen camera”.
[9] The electronic contents of the pen camera, which were eventually entered into evidence, consisted of 35 video files: 17 “active” videos, 2 deleted videos and 16 recovered video files (2 of which could not be played). Mr. Jarvis admitted that he had recorded all of these videos using the pen camera between January 2010 and June 2011, while teaching at the high school.
[10] The videos recorded by Mr. Jarvis range in length from a few seconds to several minutes. They were shot in locations in and around the school, including hallways, classrooms, the cafeteria and the school grounds. Most of the videos focus on female students at the school. At the time the videos were recorded, these students ranged in age from 14 to 18 years old. The videos show them engaged in common school activities. The videos have an audio component and, in some of them, Mr. Jarvis can be heard speaking with students on various topics. Students wearing low-cut or close-fitting tops make up the vast majority of subjects. It is also striking that a number of the videos are shot from above or beside female students who are seated in classrooms or computer labs, or who are in the hallways of the school, at angles that capture more of their breasts than would be visible if the students were recorded head on.
[11] None of the students were aware that they were being recorded, and none of them consented to being recorded. Nor did Mr. Jarvis have the school’s permission to video or audio record students. Indeed, a school board policy in effect at the time Mr. Jarvis made the videos prohibited his conduct in making the videos in the manner that he did: Agreed Statement of Facts, A.R., vol. 1, at p. 147.
[12] The police identified 27 of the individuals in the videos as female students at the high school and charged Mr. Jarvis with 27 counts of voyeurism contrary to s. 162(1) (c) of the Criminal Code . At the commencement of the trial, those charges were replaced with one global charge under s. 162(1)(c).
III. Judicial History
A. Ontario Superior Court of Justice (Goodman J.), 2015 ONSC 6813, 345 C.R.R. (2d) 103
[13] The evidence at trial consisted of the videos recovered from the pen camera,[1] an agreed statement of facts and a photo exhibit entered on consent. In the agreed statement of facts, Mr. Jarvis admitted that he had recorded the videos recovered from the pen camera and that he had done so surreptitiously. In light of those admissions, there remained only two questions at trial: first, whether the Crown had established that the students Mr. Jarvis recorded were in circumstances that give rise to a reasonable expectation of privacy; and second, whether the Crown had proven that Mr. Jarvis made the recordings for a sexual purpose.
[14] The trial judge answered the first question in the affirmative. He concluded that, in the context of the offence in s. 162(1), whether a person who is observed or recorded is in circumstances that give rise to a reasonable expectation of privacy does not depend solely on the physical location where the observation or recording occurs. Location is only one circumstance to be considered. In the case at bar, although the students captured in the videos had a lower and different expectation of privacy at the school than they would have had at home, they nonetheless had a reasonable expectation that they would not be surreptitiously recorded by Mr. Jarvis.
[15] However, the trial judge was not satisfied that Mr. Jarvis had made the recordings for a sexual purpose. Based on his review of the videos, he determined that Mr. Jarvis had positioned the pen camera to focus “for the most part, on the female students’ faces, bodies and cleavage or breasts, and on several occasions, exclusively so”: para. 72. However, in the trial judge’s view, although the “most likely” conclusion based on the evidence was that Mr. Jarvis had recorded the students for a sexual purpose, “there may be other inferences to be drawn”: para. 77. He acquitted Mr. Jarvis.
B. Court of Appeal for Ontario (Feldman J.A., Watt J.A. Concurring; Huscroft J.A. Dissenting), 2017 ONCA 778, 139 O.R. (3d) 754
[16] On the Crown’s appeal from the acquittal, the Court of Appeal for Ontario was unanimously of the view that the trial judge had erred in law in failing to find that Mr. Jarvis had made the recordings at issue for a sexual purpose. According to the Court of Appeal, this was an “overwhelming case of videos focused on young women’s breasts and cleavage”, and no inference other than that the videos had been made for a sexual purpose was available on the record: paras. 53-54.
[17] Nevertheless, a majority of the Court of Appeal upheld Mr. Jarvis’ acquittal on the basis that the trial judge had also erred in finding that the students recorded by Mr. Jarvis were in circumstances that give rise to a reasonable expectation of privacy when they were recorded. The majority was of the view that a person typically expects privacy when she is in a place where she can exclude others and feel confident that she is not being observed. The majority did accept that a person could arguably retain a limited expectation of privacy in a public place in certain circumstances. However, in the majority’s opinion, no such reasonable expectations could have arisen in the case at bar because the students recorded by Mr. Jarvis were engaged in normal school activities and interactions in common areas of the school where they would expect that others could see them and where they knew they would be recorded by the school’s security cameras.
[18] Huscroft J.A. dissented. In his view, whether a person is in circumstances that give rise to a reasonable expectation of privacy, within the meaning of s. 162(1), should not depend solely on a person’s location and ability to exclude others from that location. He stated that, to ascertain whether a person is in circumstances that give rise to reasonable expectation of privacy, a court must determine whether the person’s interest in privacy should be given priority over competing interests. In the case at bar, according to Huscroft J.A., the students recorded by Mr. Jarvis should be found to have had a reasonable expectation of privacy because their interest in privacy was entitled to priority over the interests “of anyone who would seek to compromise their personal and sexual integrity while they are at school”: para. 133. He would have allowed the Crown’s appeal on this basis.
[19] The Crown now appeals to this Court as of right on the issue of whether the majority of 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.
IV. Analysis
[20] This appeal requires the Court to consider, for the first time, the elements of the offence created by s. 162(1) of the Criminal Code . That provision reads as follows:
Voyeurism
162 (1) Every one 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.
[21] Mr. Jarvis is charged with committing the offence of voyeurism contrary to s. 162(1) (c) of the Criminal Code . That offence 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 the observation or recording is done for a sexual purpose: see R. v. Rudiger, 2011 BCSC 1397, 244 C.R.R. (2d) 69, at para. 75. A “visual recording” is defined, for the purposes of s. 162, as including “a photographic, film or video recording made by any means”: Criminal Code , s. 162(2) .
[22] It is no longer in dispute that Mr. Jarvis surreptitiously made video recordings of female students at the high school and that he did so for a sexual purpose. Thus, there remains a single question in this appeal: were the students recorded by Mr. Jarvis in “circumstances that give rise to a reasonable expectation of privacy”?
[23] In order to answer this question, I will first consider what it means for a person who is observed or recorded to be in “circumstances that give rise to a reasonable expectation of privacy” as that expression is used in s. 162(1) of the Criminal Code . I will then consider the facts of the case at bar to determine whether the Crown has proven this element of the offence beyond a reasonable doubt.
A. When Is a Person Who Is Observed or Recorded in “Circumstances That Give Rise to a Reasonable Expectation of Privacy” for the Purposes of Section 162(1) of the Criminal Code ?
[24] What does it mean, in the context of s. 162(1) of the Criminal Code , for a person who is observed or recorded to be in “circumstances that give rise to a reasonable expectation of privacy”? The parties agree that this question of statutory interpretation must be answered by reading the words of s. 162(1) “‘in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament’”: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. The parties disagree, however, on the interpretation that results from this approach.
(1) Positions of the Parties
[25] In his factum in this Court, Mr. Jarvis argued that this interpretive approach leads to the conclusion that circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) are circumstances in which a person has a reasonable expectation that she, or a part of her body, will not be observed by others. On this understanding of s. 162(1), the offence of voyeurism would be committed when the person who is observed or recorded is in a place where she does not expect to be observed by others (such as when she is alone in her own home) or when the observation or recording is of a part of a person’s body that she does not expect to be observed by others (such as a part covered by a skirt). In oral argument, counsel for Mr. Jarvis qualified this proposed interpretation somewhat by submitting that a person may also have a reasonable expectation of privacy for the purposes of s. 162(1) when she expects to be observed by certain other persons but not by the person doing the observation or recording at issue.
[26] According to Mr. Jarvis, the circumstances relevant to whether a reasonable expectation of privacy arises in a particular context may include the physical features of the space in which a person is located and the degree of control the person has over who may obtain visual access to her in the space. However, considerations such as the nature of the impugned conduct, that is, whether it consists of recording as opposed to mere observation, the “sexual nature” of the parts of a person’s body that are being observed or recorded, and the relationship