Proving reasonable expectations of privacy beyond a reasonable doubt

Every once in a while, a case comes along displaying unsettling and disturbing facts. In such instances, the law is often seen as a lighthouse guiding us through troubling legal issues. R v Jarvis, 2019 SCC 10 [Jarvis], is one of those cases. Mr. Jarvis, a high school professor, surreptitiously recorded young girls in his class with a camera pen. He focused on their breasts, faces, and upper bodies, without their knowledge or consent, while the students were in semi-public spaces, such as hallways and classrooms. These alarming facts reached the Supreme Court of Canada (“SCC” or “Court”), where Mr. Jarvis was found guilty of voyeurism under the Criminal Code, RSC 1985 c C-46. The trial judge and the Ontario Court of Appeal (“ONCA”) had previously reached the controversial conclusion that Mr. Jarvis did not make the recordings for a sexual purpose, and that the students were not in circumstances giving rise to a reasonable expectation of privacy.

Privacy does not have one fixed meaning; it is highly contextual, and may carry different meanings to different people. One of the early conceptions of privacy, by the authors Samuel Warren and Louis Brandeis, is the notion of “inviolate personality” referring to a protection that would go beyond that of private property (Warren & Brandeis, “The Right to Privacy” (1890)). This includes the rights that are inherent to our physical and moral integrity, and a violation of which would be an assault on human dignity. Those rights are now enshrined in our Canadian Charter of Rights and Freedoms [Charter], and any state violation of our rights must be demonstrably justified in a free and democratic society pursuant to section 1.

Inspired by the US Fourth Amendment, section 8 of the Charter protects Canadians from unreasonable search and seizure. A section 8 interpretation of privacy rights offers people a protection from unjustified intrusions upon their privacy interests by the government (Hunter v Southam Inc.[1984] 2 S.C.R. 145). While the Charter only applies to public entities and is meant to constrain governmental action, similar civil and criminal actions will offer redress in circumstances where an individual’s reasonable expectation of privacy (“REP”) is violated. For these cases, the SCC has developed a strong body of jurisprudence, consistent with a section 8 interpretation of privacy protections.

The primary issue raised in Jarvis is one’s right to privacy in public spaces. Can individuals in a public or semi-public space retain a reasonable expectation of privacy? While the previously adopted view was location-based, finding that a REP is only expected in private spaces, the SCC rejected this approach in Jarvis and answered in the affirmative.

This article will be arguing in support of the interpretation of a REP in criminal law, stemming from section 8 jurisprudence, where privacy violations are between two individuals. It explores how, in light of emerging technologies, heightened scrutiny should be exercised over the newer unconventional privacy violations that are likely to occur.

Reasonable expectations of privacy in public spaces

REP is at the core of privacy law. Before Jarvis, there were competing views between invasions of privacy and the protection afforded by the law. In 1998, the SCC was presented with Aubry v Éditions Vice Versa Inc, [1998] 1 SCR 591, where the right to privacy was in conflict with freedom of expression. In this case, a photographer had published a picture of a 17-year-old girl sitting on the steps of a building. The majority differentiated between a person’s REP violation when dealing with the state and when dealing with ordinary citizens, as the latter need not be tolerated. As a result, the Court afforded the respondent a privacy protection in tort law by finding the photographer liable under Civil Code of Québec, CCQ 1991, thereby rejecting the location-based approach. It is perplexing, given this finding, that students would not benefit from a REP in schools as well.

Rejection of the location-based approach

In Jarvis, when determining what circumstances give rise to a REP under section 162(1) of the Criminal Code, the provision on voyeurism, the SCC employed a contextual analysis, looking at the “totality of circumstances” (Jarvis, para 29). As such, the Court rejected once again the location-based approach and emphasized that privacy “is not an all or nothing concept.” The Court reiterated that a person’s REP with respect to information about them will vary depending on the purpose for which the information is collected. In this case, in order to meet the test for voyeurism, sexual purpose had to be proven beyond a reasonable doubt.

In adopting a contextual approach over a location-based approach, the majority took a crucial step towards enhancing privacy rights in public spaces. More importantly, the Court acknowledged that technology poses new threats and that there is a difference between being captured accidentally versus being the subject matter of a picture or recording. These examples demonstrate the surging importance of public privacy.

Privacy principles embedded in section 8 of the Charter

While the Court in Jarvis unanimously held that the children were indeed in circumstances giving rise to a REP, the majority and minority judgements differed on whether section 8 should inform interpretation of the phrase “reasonable expectation of privacy” in s. 162(1) of the Criminal Code.

The majority held that it must be presumed that Parliament chose to employ the words “reasonable expectation of privacy” in s. 162(1) purposefully, anticipating that the existing body of section 8 jurisprudence would inform their meaning (Jarvis, para 56). This is aligned with the previous interpretations of section 8 and the “totality of circumstances” approach stated in R v Tessling, 2004 SCC 67 (para 32). In that case, the Court found that in determining whether someone’s privacy interests were violated, the totality of circumstances test needed to be met. This test includes factors like the subjective expectation of privacy and whether the claimant had a direct interest in the subject matter of the search. While in R v Tessling, the Court held that using Forward Looking Infra-red imaging over the accused’s property did not trigger section 8 because it protects people and not places, the contextual approach is virtually the same as the one in Jarvis.

The majority’s use of section 8 to inform their interpretation of s. 162(1) of the Criminal Code is powerful, because it will be used to inform expectations of privacy in a digital world where more unconventional privacy violations are ubiquitous. They recognized that while section 8 protects citizens vis-à-vis the state, we can also use REP to analyze privacy violations between individuals (Jarvis, para 58). The Court emphasized that “judgments about privacy expectations in the s. 8 context are informed by our fundamental shared ideals about privacy as well as our everyday experiences” (Jarvis, para 59). This illustrates the majority’s progressive and realistic view in relation to privacy, in light of emerging technologies, but also highlights that privacy is shaped by our evolving ideals and daily experiences. By acknowledging this, the majority paved the way for a more robust section 8 interpretation between individuals, taking into account technological advancement on one hand, and the vulnerability of certain groups on the other.

Evolving expectations in light of changing technologies

With technology comes widespread interconnectivity. The possibilities of our privacy rights being breached are boundless and addressing these potential privacy violations will require a comprehensive change of perspective, which the courts have begun to adopt. In Jones v Tsige, 2012 ONCA 32 [Jones], an employee of the Bank of Montreal grossly violated another employee’s privacy by going through her financials 174 times. The plaintiff brought an action of invasion of personal privacy. Inspired by the US Tort Restatement §652B, the ONCA held that the defendant had committed the tort of intrusion upon seclusion, as her action satisfied three elements: it was intentional, it was an unlawful invasion, and it would be viewed as highly offensive to the reasonable person. The Court still looked at section 8, stating that “the interests engaged by section 8 are not simply an extension of the concept of trespass, but rather are grounded in an independent right to privacy held by all citizens.” (Jones, para 39)

Privacy should not shrink as a result of technological advancement

Despite having REP in public spaces, there is a higher risk to privacy once we step outside our homes. Some argue that knowledge equals consent, and that citizens impliedly consent to some forms of privacy violations as part of living in society. This is the biggest misconception of implied consent. Waiving one’s right to privacy should not be a trade-off for living in society. On the other hand, maintaining full and inviolable privacy is also unrealistic in an increasingly interconnected world. To appropriately balance these two ideas, simply appearing in public should not be understood to imply consent to anything other than casual observation by other bystanders. As the SCC noted in Jarvis, there is a difference between being caught incidentally in a photo and being its centerpiece. (Jarvis, para 40)

It is futile to state that by virtue of one’s physical location, one had impliedly consented. This is the reasoning that the SCC rejected in Jarvis. By stating that privacy is not an “all-or-nothing” concept, the SCC briefly addressed this issue of implied consent when it said: “simply because a person is in circumstances where she does not expect complete privacy does not mean that she waives all reasonable expectations of privacy.” (Jarvis, para 61)

Limitless potential of privacy violations

Technologies that improve our lives can also thwart the detection of criminal conduct as they provide a leveraged ability to target the most vulnerable, including youth.

Most young people today immerse their identity in social media. They embody the definition of the “privacy paradox.” Their willingness to share is entirely dependent on other’s willingness to share, thus dictating their privacy by societal norms. In that sense, children and youth have limited knowledge of the extent of any potential privacy violations, so it is a real challenge to try to determine the level of exposure they are willing to tolerate. This makes defining the REP in such a case more difficult. In Jarvis, the fact that children were the target played an important role in the analysis, as there was a clear power imbalance, especially due to the trust that students place in their teachers.

A section 8 analysis would then be useful in non-Charter REP cases, especially when the subject of the protection is a young person.

Conclusion

Reasonable expectations of privacy are highly contextual and are not location-based, as held by the SCC in Jarvis. Section 8 jurisprudence is useful in informing REP when privacy violations arise in criminal contexts and among private actors. Courts will need to adapt the contextual analysis as emerging technologies create new ways of targeting vulnerable populations. No one simply waives their right to privacy once they step outside their homes, and any assumption of implied consent should be made very cautiously. By building on section 8 jurisprudence and focusing on relationships of trust, the court can mitigate any uncertainty surrounding REP while protecting individuals’ physical and moral integrity.

Nadine Eltawdy

Nadine Eltawdy

Nadine Tawdy is a third-year law student at the University of Ottawa Faculty of Law. She is interested in commercial litigation, data privacy and the intersections of AI and the law. She is an active member of the Faculty’s student government and an advocate for the advancement of women in the legal field. She is an incoming articling student at Borden Ladner Gervais LLP.

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