Decision in R v Jarvis Offers Robust Account of Privacy in Voyeurism Cases

| February 14, 2019

The Supreme Court of Canada today its decision in R v Jarvis, a voyeurism case where a high school teacher used a pen cam to surreptitiously record multiple videos focused mainly of the chest and cleavage area of several female students and one female colleague.

The majority of the Ontario Court of Appeal acquitted the defendant, 2017 ONCA 778, finding that while the photos were taken for a sexual purpose, the young women he targeted did not have a reasonable expectation of privacy in the school setting where the photos were taken, an essential element of the voyeurism offense.

CIPPIC intervened on appeal before the Supreme Court, arguing for a normative and contextual approach to the privacy interests protected by the voyeurism offense, one that one that considers the totality of the circumstances surrounding the recording and appreciates privacy's contribution to equality interests.  uOttawa Professor Jane Bailey, who is the co-lead of The eQuality Project, presented CIPPIC’s oral arguments (viewable starting at 57:00 here).

The Supreme Court unanimously overturned the Court of Appeal, and adopted an approach to the reasonable expectation of privacy from acts of voyeurism that grounds privacy in its fundamental role in fostering “dignity, integrity and autonomy” in a free and democratic society.  The inquiry is a contextual one, and the question in each case is whether there was a reasonable expectation of privacy in the totality of the circumstances. 

The case is particularly notable for its approach to technology: ease of surveillance does not necessarily shrink reasonable expectations of privacy.  Privacy is normative, not descriptive: just because we can be recorded or photographed does not undermine the reasonableness of our expectation that we won't be, or that such recordings won't be used in another, unexpected and unwanted context.

[63] While evolving technologies may make it easier, as a matter of fact, for state agents or private individuals to glean, store and disseminate information about us, this does not necessarily mean that our reasonable expectations of privacy will correspondingly shrink.

The Court also took a strong position on privacy rights in public spaces:   

[37] ... a person does not lose all expectations of privacy, as that concept is ordinarily understood, simply because she is in a place where she knows she can be observed by others or from which she cannot exclude others.

While we were disappointed that the Court did not take us up on our invitation to connect the dots between equality rights and privacy, or to comment on the gendered nature of voyeurism offenses - roughly 90% of offenders target girls or women - we have to take some satisfaction in the Court's approach to privacy in this case.