How hard can it be to find that someone who takes surreptitious videos of the breasts of young women who have not given consent is guilty of voyeurism? As it turns out, more complex than one might think.
In R. v. Jarvis, the Supreme Court of Canada took a strong stand against “voyeurism”, particularly in the context of that case. It took what seems to be an inordinate effort of analysis to get there, though.
Jarvis had made videos focused on the upper bodies, particularly their breasts and cleavage, of female students and a female teacher, using a pen with a camera installed (“a pen camera”); in some cases, the videos revealed their faces. He was charged with voyeurism under section 162(1)(c) of the Criminal Code:
s.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
(c) the observation or recoding is done for a sexual purpose.
The trial and Court of Appeal decisions were decided on the basis of the accused’s section 8 Charter right against unreasonable search and seizure, whether the recordings were done for a sexual purpose and on the meaning given to “circumstances which gave rise to a reasonable expectation of privacy”. He was acquitted at both levels. By the time Jarvis reached the Supreme Court, however, it was “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” (SCC, para. 22); therefore, the only issue the Supreme Court needed to determine was the meaning of “circumstances that give rise to a reasonable expectation of privacy”, that is, whether the students were entitled to expect privacy.
Initially, the accused’s own privacy rights in the contents of his pen camera were at issue because the pen had been searched without a warrant (a cursory search to decide if a warrant were needed). The trial judge held that Jarvis’s section 8 Charter right had been contravened, but admitted the evidence under section 24 (2) of the Charter. Jarvis conceded that he had made the recording “surreptitiously” and the judge found that the students had a “reasonable expectation of privacy”; however, he also found that “[w]hile a conclusion that the accused was photographing the student’s [sic] cleavage for a sexual purpose is most likely, there may be other inferences to be drawn that detract from the only rationale [sic] conclusion required to ground a conviction for voyeurism” (ONSC, para. 77) (although he could not name any on the evidence) and therefore acquitted Jarvis.
The majority in the Court of Appeal found that Jarvis had “a diminished expectation of privacy in his camera pen” (the school administration had the authority to search the pen when he was found using it as he was, among other reasons), which had to be set against the seriousness of the section 8 breach by the police; furthermore, breach of trust by Jarvis in relation to students mitigated against exclusion. They (and the dissent) admitted the evidence.
The majority and dissent held that the trial judge erred in holding that the recordings were not made for a sexual purpose, but the majority also held that the trial judge erred in finding that the students had a reasonable expectation of privacy (CA, paras. 110, 111 and 112). The dissent, however, concluded that the trial judge did not err in finding that the recordings were made in circumstances giving rise to a reasonable expectation of privacy (CA, 112 and 113); he would have allowed the appeal and entered a conviction (CA, para. 136). The Crown appealed to the Supreme Court of Canada on the basis that the circumstances did give rise to a reasonable expectation of privacy.
The majority in the Court of Appeal emphasized a concept of privacy based on “location”, that there are (usually) public places where people would expect to be observed and when they know there are cameras (as in schools) would expect to be recorded. They acknowledged exceptions, such as “upskirting” or the taking of photos or videos up a woman’s skirt, which could occur in a public place (CA, para. 96). The majority, however, rejected the notion that the recording by Jarvis of the students, which was not encompassed by expectations based on regular surveillance cameras, infringed the students’ privacy; rather, expectations that a faculty member would secretly video them on an individual basis “arises from the nature of the required relationship between students and teachers, not from an expectation of privacy” (CA, para.105). Here, students were “engag[ed] in normal school activities and interactions in the public areas of the school where there were many other students and teachers” and therefore did not have a reasonable expectation of privacy (CA, para. 109). It is not clear why “upskirting”, the taking of video from below, would be an invasion of privacy but taking videos of breasts from above, would not be. The Court of Appeal’s approach would severely diminish the value of the voyeurism provision and undermine the notion that the use of technology may be important in determining issues of privacy within public places.
The dissent rejected the location-based definition of privacy, other than to say that it is a consideration under s.162(1). Instead, the conduct involved must inform the expectation of privacy and in this case, “the students’ interest in privacy is entitled to priority over the interests of anyone who would seek to compromise their personal and sexual integrity while they are at school” (CA, para. 133).
Chief Justice Wagner, for five other justices, took section 8 of the Charter jurisprudence into account in considering the meaning of privacy under section 162(1) of the Criminal Code, an approach rejected by Rowe J., speaking for two other judges. Rowe J. maintained that the section 8 jurisprudence had no applicability to a statutory provision; Charter values were not applicable, either, since the provision is not ambiguous. Although these differing approaches may have an impact in other cases, the difference does not ultimately affect the outcome and I say no more about them. Rather, I focus on other aspects of the case, specifically factors to be taken into account quite apart from section 8 jurisprudence, the role of technology and the lack of a gendered analysis.
The Chief Justice identified nine factors that might be relevant to deciding whether an individual being recorded (“the individual”) was in circumstances that gave rise to a reasonable expectation of privacy: where the individual was; whether the impugned conduct was observation or recording; “[a]wareness of or consent to potential observation or recording; how the observation or recording was done; what was being observed or recorded; any rules, regulations or policies governing the observation or recording; relationship between the individual and the observer or recorder; the purpose of the observation or recording; the personal attributes of the individual. Not all these considerations might be relevant in a particular case, but they are also not exhaustive. (SCC, paras. 29 and 30)
Rowe J. rejected Wagner C.J.’s “multi-factored analysis”, as he put it, saying that four of the factors are required by section 162(1) (location, subject matter, purpose, awareness or consent) and the other five (whether the conduct was observation or recording, its manner, existence of rules, relationship and personal attributes) “are ones properly considered in the determination of a fit sentence once a conviction has been entered, rather than in the definition of the offence” (SCC, paras. 108 and 109).
As the Chief Justice points out, however, those that are elements of the offence may have a different impact when considered in assessing the concept of privacy: for example, that there is a sexual purpose is an element of the offence and in that context must be shown beyond a reasonable doubt, whereas in the more general consideration, it is only one factor (SCC, para. 32). Nevertheless, it is not clear how this difference would apply: if the sexual purpose under section 162(1)(c) is not established beyond a reasonable doubt, the individual cannot be convicted, since a requirement of the offence would not be met, even if it is a relevant factor in the consideration of whether there is a reasonable expectation of privacy; if it is established under section 162(1)(c), on the other hand, exactly how does it constitute an independent consideration of whether the recording had been done as a breach of a reasonable expectation of privacy? It is also not clear how the relationship between the individual and the person doing the recording actually affects whether someone has a reasonable expectation of privacy: certainly, it is true that here, it makes the conduct seem especially reprehensible, but it does not change the fact that the students were entitled to expect that no one would be recording them in that manner. One might say the same of the consideration about a rule or regulation governing recordings. Furthermore, the Chief Justice concludes that “given the content of the videos…and the fact that they were recorded without the students’ consent, I would likely have reached the same conclusion even if they had been made by a stranger on a public street rather than by a teacher in breach of a school policy” (SCC, para. 90).
This last statement does highlight the risk inherent in Wagner C.J.’s non-exhaustive enumeration of “considerations”. Regardless of the Chief Justice’s caveats about the list, there may be a temptation for some judges to focus on the lists as a “checklist”. There is also no doubt the list was informed by the particular facts of the case. Yet anyone who observes from afar or records grown women in public places for a sexual purpose should be liable under section 162(1): the lack of a “rule” (other than section 162(1) itself, one might argue) or a particular relationship should be irrelevant.
The more succinct test articulated by the Chief Justice is “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” (SCC, para. 5); determining whether that is met requires a consideration of the entire context [the various factors] in which the observation or recording occurred (SCC, para. 28).
One of the most important aspects of the decision is its critical departure from the Court of Appeal analysis in holding that even though one is in a public place, one may still have expectations of privacy: significantly, although one may be subject to surveillance and be aware of that fact, conduct that is not considered a legitimate reason for the surveillance or does not take the form of the accepted or official surveillance, may result in an invasion of privacy. Thus although students are subject to surveillance in schools, just as everyone is subject to surveillance on the street or in other places to which the public has access (office buildings or the subway, for example), their expectations about the impact of the official surveillance is that it will be “fleeting” and “incidental”, not specific to them; furthermore, the surveillance will be for specific purposes that do not include sexual purposes. (Having said that, official surveillance may focus on individuals, say at an ATM). Accordingly, observation or recording targeting particular people in such a way or for subsequent use that can be defined as “sexual purpose” when it is done surreptitiously, carves out an impermissible purpose from otherwise “accepted” surveillance . This can occur anywhere, whether otherwise considered public, quasi-public or private.
A discussion of location matters because it is important to ensure that a particular location does not defeat the purpose of section 162(1), as it did at the Court of Appeal. As Kristen Thomasen and Suzie Dunn point out in a commentary on the Court of Appeal decision, the location approach means that the onus will fall on women and girls to protect themselves from the possibility of inappropriate observation or recording. Indeed, location seems less a “consideration” akin to some of the others listed (such as a trust relationship, which, while applying here, will often not be relevant) than a fundamental interpretative factor: it underlies the difference between the Supreme Court’s analysis (and for that matter, the trial judge’s) and the Court of Appeal’s. A purposive and evolving approach to voyeurism, one of that is able to withstand advances in technology available for surreptitious recording, must be premised on an approach to location that goes beyond private spaces. It must recognize that even in public spaces, individuals retain a sphere of privacy on which others cannot intrude.
The other significant aspect of section 162(1) and of the decisions is understanding that “recordings” are not finite and they themselves are not limited to the place where they are made. In this case, the camera pen itself has a limited range of impact (although this is sufficient to bring it within the provision), but its contents can be downloaded to a computer and from there its reach is at least theoretically infinite and permanent. In Rowe J.’s words, those who are recorded “lose control over their image” (SCC, para. 133). Kristen Thomasen and Suzie Dunn explain that when women cannot affect the use of their image for sexual purposes, their sexual integrity is infringed.
The majority’s analysis in particular makes it clear that technology is not to be viewed as “trumping” when people have a reasonable expectation of privacy. Even now technology can invade private and public spaces in ways that we couldn’t have imagined previously, except perhaps in science fiction. With the development of new technologies, it is possible to turn “private” spaces into “public” or “quasi-public” spaces; this will not stop, but will no doubt become easier and harder to discover. The lesson of Jarvis is that technology cannot be used to turns the space from private to public by exposing it to others normally not permitted access, technology’s abusive use and whether the individual subject to it has the right to sexual integrity will determine whether the use of the technology constitutes a criminal offence. The same view of technology, merely as a tool, albeit one with significant ramifications, and a broad understanding of the evolution of privacy, can inform other contexts.
The examples of situations in which technology is used to invade the sexual integrity of individuals provided by both the majority and minority judges in Jarvis (and the judges at the trial and appellate levels) involve women. This is not surprising, since it is women whose sexual integrity is most often compromised. Yet the judges did not take the opportunity to point this out explicitly (possibly thinking it was obvious, given the examples) and despite listing the nine considerations to be taken into account, the Chief Justice did not include “gender” as one of them. Pam Hrick and Moira Aikenhead point out in an opinion column in The Globe and Mail that “the court missed an opportunity to identify voyeurism for what it is: a form of gender-based violence”. As they say,
The gendered nature of this and other forms of technology-facilitated abuse are increasingly being discussed in the public realm, from keystroke spyware to GPS tracking to smart-home manipulation to deepfake pornography to the non-consensual distribution of intimate images, all of which are being weaponized in ways intended to control and coerce women and girls. Each of these forms of conduct raises concerns not just about the violation of privacy rights, but about the right of women and girls to participate equally in society.
It is therefore particularly critical in the context of voyeurism and similar conduct that in considering where persons may have a reasonable expectation of privacy, the determination is not made on the location where the conduct occurs or to which access through technology is achieved; rather Jarvis tell us that despite a diminished expectation of privacy in so many aspects of our lives, there remains a recognition that that diminished expectation for some purposes does not result in a diminished expectation for other purposes. As with much in modern life, the more difficult task will be one of discovery, particularly as technology becomes more advanced. Nevertheless, acknowledging the part technology plays in framing our lives does not mean that we must give up a crucial aspect of our identity, our sexual integrity, and control over our image of ourselves.
It is ironic, perhaps, as people voluntarily give up privacy in our “tell all” culture or on social media, there is an increasing interest in ensuring that this is voluntary. Whether this means regulating social media giants or ensuring a broad appreciation for maintaining a privacy sanctuary in an increasingly public world, our right to maintain control over our image must remain protected. In Quebec, the Civil Code and the Quebec Charter of Human Rights and Freedoms contain protections for privacy (see Aubry v. Éditions Vice-Versa inc.). (For a recent example, see Teresa Scassa’s comment on a case involving Google Streetview in which the complainant was awarded damages when she found she was in the photo of her house.) Despite Jarvis‘s limited context, it, along with developments under section 8 of the Charter relating to privacy, could help inform a more highly developed understanding of when recognition of a reasonable expectation of privacy in other contexts.