WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Court of Appeal for Ontario

Date: 2017-10-12

Docket: C61396

Judges: Feldman, Watt and Huscroft JJ.A.

Parties

Between

Her Majesty the Queen

Appellant

and

Ryan Jarvis

Respondent

Counsel

For the Appellant: Christine Bartlett-Hughes and Jennifer Mannen

For the Respondent: Susan M. Chapman and Jennifer Micallef

Hearing and Appeal

Heard: November 29, 2016

On appeal from: The acquittal entered on November 10, 2015 by Justice Andrew J. Goodman of the Superior Court of Justice.

Decision

Feldman J.A.:

INTRODUCTION

[1] The respondent was acquitted at trial of the offence of voyeurism, contrary to s. 162(1)(c) of the Criminal Code. He was a high school teacher who used a camera pen to surreptitiously take videos of female students (and of one female teacher), in most of the cases, while he was conversing with them in school. The videos included the faces of the subjects but focused on their chests and cleavage area.

[2] The Crown appeals the acquittal. There were three main issues at trial: 1) whether the police breached the respondent's s. 8 rights by conducting an initial "cursory search" of the contents of the camera pen's storage device, without a warrant and before he was arrested, and, if so, the admissibility of that evidence under s. 24(2) of the Charter; 2) whether while they were in school, the students were "in circumstances that give rise to a reasonable expectation of privacy", within the meaning of the section; and 3) whether the videos were "done for a sexual purpose" within the meaning of the section.

[3] The trial judge found a s. 8 breach, but admitted the evidence of the videos recorded on the camera pen under s. 24(2). He concluded that the students did have a reasonable expectation of privacy in the circumstances. However, he found that he was not satisfied beyond a reasonable doubt that the videos were done for a sexual purpose.

[4] The Crown appeals the latter finding, based on an error of law in the interpretation and application of the section and the application of the circumstantial evidence rule. In response, the respondent says there was no error of law, but if there was, the trial judge erred in admitting the evidence under s. 24(2) and in finding that the students had a reasonable expectation of privacy in the circumstances.

FACTS

[5] The trial evidence consisted of an agreed statement of facts as well as agreed exhibits including the impugned video recordings. The trial proceeded following a ruling made under s. 24(2) of the Charter to admit into evidence the contents of the recordings made by the respondent with the camera pen.

[6] The respondent was a teacher in good standing at a secondary school in London, Ontario in 2011. He taught many students and had a positive rapport with them.

[7] During 2010 and 2011, he made a number of video (with audio) recordings of a number of female students and one female teacher. The videos were taken at different locations around the school including in hallways, classrooms, the cafeteria, staff offices and outside the school. The videos range in duration from six seconds to just over two and a half minutes. In a number of them, the respondent is having a conversation with the person he is surreptitiously videoing. In most, while the camera is on the girl's face, the focus remains for an extended period of time on her chest area and cleavage.

[8] The students were between 14 and 18 years old. It was an agreed fact that each student had a subjective expectation of privacy that they would not be surreptitiously audio and/or video recorded by the respondent. They were not aware that they were being recorded and did not consent to it.

[9] The respondent did not have the school's permission to make the recordings. There was a school board policy in effect which prohibited the respondent's conduct in making the recordings in the manner he did.

[10] There were 24-hour surveillance security cameras in and around the school, which were clearly visible to everyone. There was also signage regarding the 24-hour surveillance.

[11] The police became involved when they were called by the principal of the school on June 21, 2011. The day before, another teacher had reported to the principal that he had made frequent observations of the respondent apparently recording female students with his pen. Having become concerned for the safety and security of the students, the principal informed the superintendent who advised him to obtain the pen. The principal also called the teachers' federation so that a representative could be available for the respondent.

[12] Coincidentally, the principal walked by the respondent in the hallway and observed him speaking with a female student at a locker, while holding up a pen that emitted a red light from the top. He saw the respondent later in the computer lab, standing while speaking with a female student who was seated. Again the respondent was holding up the pen with the red light shining from the top. When the respondent saw the principal, he put the pen in his pocket. The principal asked the respondent to come to an empty classroom where the principal asked to see the pen that the respondent had been holding. At first, the respondent said it was in his office, but when the principal said he had just seen him put it into his pocket, he handed it over.

[13] The principal provided the pen, which matched the description given by the other teacher, to the school superintendent, who provided it to the police. Before making an arrest or obtaining a warrant, Detective Howe reviewed three of the videos on the USB device in the pen. Based on that review, he obtained a warrant to search the pen. It contained 19 videos, two of which had been deleted. There were 30 different individuals on the videos, 27 of whom were female students at the school.

[14] Based on this search, the police obtained a warrant to search the respondent's home and computers there, which they did, but found nothing relevant to the investigation.

FINDINGS OF THE TRIAL JUDGE

[15] In a separate pre-trial ruling, the trial judge admitted the evidence of the videos contained in the camera pen.

[16] He determined that the respondent had a reasonable expectation of privacy in the contents of his camera pen and that without an arrest or exigent circumstances, the original warrantless search of the USB device inside the pen constituted a breach of s. 8 of the Charter. However, he found that all three Grant factors favoured admission of the evidence under s. 24(2): 1) the police conduct was not in bad faith; 2) the Charter breach was not serious because the search was not of a computer but of a camera; and 3) admission of the evidence was necessary to prosecute the crime and would have a negligible impact on the administration of justice: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[17] Once the evidence was admitted, the trial judge then considered whether he was satisfied beyond a reasonable doubt of the elements of the offence under s. 162(1)(c) of the Code, which provides:

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 recording is done for a sexual purpose.

[18] The trial judge found that the respondent had conceded that he surreptitiously used his pen camera to make recordings of female students on different occasions at school. The two questions to be determined were: 1) whether the recordings were made in circumstances that gave rise to a reasonable expectation of privacy; and 2) whether they were made for a sexual purpose.

[19] The trial judge found that there was a reasonable expectation of privacy. However, on the second issue he concluded:

While a conclusion that the accused was photographing the student's cleavage for a sexual purpose is most likely, there may be other inferences to be drawn that detract from the only rational[e] conclusion required to ground a conviction for voyeurism.

ISSUES ON APPEAL

[20] The Crown appeals the acquittal under s. 676(1)(a) of the Code, which requires that the ground of appeal be on a question of law alone.

[21] The Crown's appeal is based on the submission that on the facts found by the trial judge, the only reasonable or available conclusion was that the recordings were made for a sexual purpose. Therefore the trial judge erred in law by failing to apply the legal test for determining whether the recordings were made for a sexual purpose. Alternatively, the trial judge erred in his application of the rule in Hodge's Case, by speculating that "while a conclusion that the accused was photographing the student['s] cleavage for a sexual purpose is most likely, there may be other inferences to be drawn", without any evidence from which to draw any other inference.

[22] The respondent submits that if the trial judge erred in law (which he refutes), then the acquittal should be upheld in any event on the basis of two errors made by the trial judge in his other findings: 1) he erred in admitting the evidence of the contents of the camera pen under s. 24(2) of the Charter; and 2) he erred in law in finding that the circumstances could give rise to a reasonable expectation of privacy.

ANALYSIS

1) Did the trial judge err in law by finding that he had a reasonable doubt whether the videos were made for a sexual purpose?

(1) Background of the offence

[23] The voyeurism offence was enacted in 2005 to address public concerns with the rapid advent of technology that could be used to spy on people surreptitiously for sexual purposes. The Canadian government issued a 2002 consultation paper entitled Voyeurism as a Criminal Offence: A Consultation Paper, where the purpose behind the initiative to address these concerns was discussed and input sought from interested parties and groups.

[24] In that paper, the government discussed the issues the legislation was intended to address: breaches of privacy and the sexual nature of the proposed offence. The paper explained the sexual concern in the following paragraph:

b) As a sexual offence

The sexual aspect of the offence arises from one or two sources (and in any given case, both may be operative): the purpose for which the observation is made (e.g. sexual arousal of the voyeur) or, alternatively, the nature of the subject observed (e.g. viewing or recording the victim's sexual organs or the victim engaged in explicit sexual activity.) The policy justification for prohibiting voyeurism in this context is that it prevents a private citizen from sexually exploiting another private citizen. The sexual exploitation occurs the moment that the voyeur observes or records the victim, even if the victim is not aware of it. [Emphasis in original.]

[25] The offence that was ultimately enacted provides:

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 activity; or

(c) the observation or recording is done for a sexual purpose.

[26] The offence has a number of components and requirements. It can be committed in two ways, one by observation and the other by visual recording. Although both ways of committing the offence are contained in the same section, the consequences of recording versus just observing another person can be much more pernicious.

[27] A recording can be shared with one or more other people, thereby significantly increasing the breach of privacy and indignity to the victim. Most seriously, a recording can be posted in numerous ways on the internet, including on pornography sites, for profit or even for blackmail. As a result, the scope of the harm from recording can be extreme. To criminalize this harm specifically, Parliament created a separate offence, found in s. 162(4), which prohibits the printing, publishing, and distributing of voyeuristic recordings.

[28] To come within the voyeurism offence, the observation or recording must be done surreptitiously. Also the person who is observed or recorded must be in circumstances that give rise to a reasonable expectation of privacy. There are then three alternative elements that further delimit or define the offence. All three indicate that it is the sexual integrity of the victim that is intended to be protected.

[29] The first focuses on the location of the victim: the offence occurs when the victim is in a place where a person can reasonably be expected to be nude, to expose their genitals, breasts or anal region, or be engaging in sexual activity. The second focuses on what the victim is doing: the offence occurs if the victim is nude or is engaging in sexual activity and the purpose of the perpetrator is to observe or record the nudity or the sexual activity.

[30] The third element is not circumscribed by the victim's location, his or her state of undress, or sexual activity. The offence is committed if the observation or recording is done for a sexual purpose. Of course, all these elements are governed by the overall requirement that the person observed or recorded must be in circumstances that give rise to a reasonable expectation of privacy.

(2) The trial judge's analysis

[31] In his analysis of the meaning of "for a sexual purpose", the trial judge referred to the decision of the Supreme Court of Canada in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, where McLachlin C.J. discussed the meaning of "for a sexual purpose" in the context of s. 163, the child pornography offence. That offence involves, by definition, a determination of whether the "dominant characteristic" of pictures of "a sexual organ or the anal region of a person under the age of eighteen years" is "for a sexual purpose". McLachlin C.J. stated, at para. 50, that she would interpret that phrase "in the sense of reasonably perceived as intended to cause sexual stimulation to some viewers." As an example, family photos of naked children, viewed objectively, generally would not have the depiction of a child's sexual organ or anal region for sexual stimulation as their dominant purpose.

[32] The trial judge then observed that "the determination of whether an image or images are intended to cause sexual stimulation must be assessed on the totality of the evidence." As examples of relevant considerations, he listed nudity, sexual contact or sexual posing, indicia of sexual stimulation, whether the images are associated with sexual activities, other indicia of sexuality, whether the images are part of a series of sexual materials and whether they were taken surreptitiously. Focusing again on the decision in Sharpe, and the importance of context, he stated that most cases have as a predominant feature nudity, genitalia or sexual acts. He also found that sexual gratification is a component of "for a sexual purpose." This is consistent with the interpretation of the same phrase in a number of other sections of the Code: R. v. Morrisey, 2011 ABCA 150, at para. 21 (s. 151, sexual interference); R. v. Colley, 2009 BCCA 289, 273 B.C.A.C. 107, at paras. 12 and 15, leave to appeal refused, [2009] S.C.C.A. No. 358 (s. 152, invitation to sexual touching); and R. v. M.B., 2014 QCCA 1643, at paras. 22-24 (s. 151, sexual interference and s. 153, sexual exploitation).

[33] Turning to the facts of this case, the trial judge noted that because the respondent did not testify, there was no evidence (meaning direct evidence) of his purpose. As a result, the case had to be determined based on the totality of the circumstantial evidence. He then reviewed the contents of the videos in detail, noting that there were five videos that were primarily focused on the cleavage of female students. The Crown pointed to five factors that demonstrated that the videos were taken "for a sexual purpose":

a) The surreptitious nature of the video recordings;

b) The subject and content of the videos being only female students;

c) The camera generally pointing downward towards the students' cleavage;

d) Numerous video captures, primarily focusing on the students' breasts; and,

e) In some of the clips, the camera is set up so as to only capture a student's breasts.

[34] The trial judge effectively minimized these factors with the following six responses to the Crown's points:

a) The recordings were not found with other adult or child pornographic material;

b) Most of the clips depict the student's entire face and body;

c) The pen camera is static and not manually controlled during the recordings;

d) There is no nudity;

e) There are no captures of undressing or explicit sexual activity; and,

f) The videos were all recorded surreptitiously.

[35] The trial judge went on to emphasize that the camera pen could not zoom in or enhance its focus, and that the pictures included the faces and upper bodies of the female students as well as their cleavage. As examples of situations where a video of a clothed person could be for a sexual purpose, he listed a person wearing a wet bathing suit, translucent material, or overtly sexual clothing, such as leather or bondage gear.

[36] He noted that in this case, what was recorded were at least five videos focused on the cleavage of three particular students "of what can be readily seen from the naked eye without effort", and that "the mischief here is that what can be seen has been recorded permanently on a device for possible viewing, dissemination or for other unknown purposes at a later time."

[37] The trial judge then found:

Unlike other cases proffered by the Crown attorney, the students here are fully clothed and not so situated, that I am persuaded that the recordings, even with images that predominately display the students' cleavage, have as their focus the students['] sexual organs. While a conclusion that the accused was photographing the students['] cleavage for a sexual purpose is most likely, there may be other inferences to be drawn that detract from the only rational[e] conclusion required to ground a conviction for voyeurism.

[38] The trial judge concluded that while the respondent's behaviour was "morally repugnant and professionally objectionable", he was "not satisfied beyond a reasonable doubt that the only rational conclusion is that the limited camera pen images of the female students' cleavage or breasts were made for a sexual purpose."

(3) Interpretation of the section

[39] As the offence of voyeurism is just over a decade old, there are relatively few decisions under the section. Two were referred to by the trial judge. In one, the victims were clothed, but the accused was still convicted. In the other, the complainants were nude but the accused was acquitted.

[40] In the British Columbia case of R. v. Rudiger, 2011 BCSC 1397, 278 C.C.C. (3d) 524, the accused hid in a van and videotaped small children in swimwear playing in a park. When the police knocked on the window of the van, the accused asked them to hold on as he had to put his clothes on. The police observed wadded tissues on the floor of the van. The appellant was charged with possession of child pornography and voyeurism. The trial judge found that the videos were made for a sexual purpose and that finding was not disputed on the appeal.

[41] In R. v. Lebenfish, 2014 ONCJ 130, the accused was snapping pictures of people sunbathing naked on a nude beach on the Toronto Islands. He testified and explained that he had made many trips to Hanlan's Point, he had an interest in nudity and took the pictures as a hobby for an aesthetic purpose and not a sexual one. He did not disseminate or post any of the pictures. The trial judge appeared to accept his testimony. The trial judge also found that he did not act surreptitiously and there was no reasonable expectation of privacy.

[42] Other decisions to which the trial judge was referred involved charges of child pornography. Many, if not most of these cases involved pictures of naked children. However, that is not a requirement. Rudiger was an example of a case where the children were wearing bathing suits but the focus was on their genital regions, which is a requirement of the child pornography offence.

[43] The trial judge put significant emphasis on the lack of nudity or sexualized clothing in his analysis of whether these videos were taken for a sexual purpose. In my view, a contextual analysis of the voyeurism offence demonstrates that that was an error. As discussed above, there are three different circumstances that can constitute the offence. Two of them specifically involve nudity or engaging in sexual activity. One is where the observation or video is made of a person who is in a place where the person can be expected to be nude. The second is where the person is nude.

[44] The third circumstance is where the observation or video is made for a sexual purpose. If that third circumstance also required nudity as a component, it would be redundant. Therefore, while nudity may certainly be relevant to an analysis of the sexual purpose of the video, the fact that the person is clothed cannot be a factor that negatives that purpose. If the person were nude, the charge could be laid under paragraph (1)(b). Because observing or visually recording for a sexual purpose is a separate offence, it is clear that it can be committed where the victims are not naked, but where the focus of the observation or videos is on sexual organs or where there are other indicia that the intent of the accused is for a sexual purpose.

[45] In this case, as the trial judge correctly stated, because the respondent did not testify, whether the videos were made for a sexual purpose had to be determined based on all of the circumstances. As he also correctly observed, applying the test from Sharpe, whether the image would be reasonably perceived as intended to cause sexual stimulation is based on the image and must be assessed on the totality of the evidence.

[46] The respondent took advantage of his position as a teacher to make surreptitious videos of his teenaged female students. At least five of the videos focused on the cleavage of those female students. He was taking close up, lengthy views of their cleavage from angles both straight on and from above. The trial judge found that while it was most likely that the respondent was photographing female students' cleavage for a sexual purpose, "there may be other inferences". However, he failed to identify any such inference anywhere in his reasons. With respect to the trial judge, there were no other inferences available on this record.

[47] As the trial judge stated, this conduct by the respondent was morally repugnant. That finding is inconsistent with the trial judge's conclusion that the videos might not have been taken for a sexual purpose. The reason the teacher's conduct was morally repugnant was because of the sexual impropriety of taking surreptitious pictures of the breasts of his female students. Had he been taking surreptitious pictures of only their faces, his conduct would have been unacceptable as a breach of the teacher-student trust relationship, but not morally repugnant because of sexual impropriety.

[48] The Crown submits that the trial judge erred in his application of the rule regarding circumstantial evidence, the old rule in Hodge's Case that requires a verdict of guilt based on circumstantial evidence to be the only rational or reasonable conclusion. I agree.

[49] That rule was most recently discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. In that case, the trial judge had convicted the accused of possession of child pornography found on his computer. The issue was whether he had knowledge and possession of the impugned images. The Alberta Court of Appeal set aside the verdict on the basis that there were gaps in the evidence that should have raised a reasonable doubt.

[50] The Supreme Court allowed the appeal. It held that the trial judge's conclusion of guilt was reasonable based on the record as a whole and that the Court of Appeal erred in its analysis by elevating gaps in the evidence to speculative possibilities that did not raise a reasonable doubt.

[51] Respondent's counsel also suggested in argument the hypothetical that the respondent's purpose may have been to innocently test out his camera pen because he had an interest in the technology. The trial judge did not take up that suggestion in his reasons.

[52] In Villaroman, dealing with suggested hypotheticals, the court stated, at para. 50:

When dealing with the defence position, the judge correctly stated the law, in my opinion. The judge properly noted that "the accused cannot ask this Court to rely on supposition or conjecture, that flows from a purely hypothetical narrative to conclude that the Crown has not proven he is guilty of the offences with which the Crown has charged him": para. 47. The judge's citation of McIver was intended to make the same point, i.e. that a reasonable doubt cannot arise from speculation or conjecture. This is perfectly correct. As the Court said in Lifchus, "a reasonable doubt must not be imaginary or frivolous"; need not be proof to an absolute certainty; and must be based on "reason and common sense": paras. 31 and 36. The burden on the Crown does not extend to "negativing every conjecture": R. v. Paul, [1977] 1 S.C.R. 181, at p. 191.

[53] This was an overwhelming case of videos focused on young women's breasts and cleavage. The trial judge made two errors of law in his analysis. First, he erred by suggesting in his interpretation of the sexual purpose provision that, taken on its own, the lack of nudity or sexually suggestive clothing or poses could derogate from the sexual purpose of the videos that were focused on breasts and cleavage. Subsection (b) of the offence of voyeurism specifically makes it an offence to surreptitiously observe or visually record a person who is nude. Subsection (c) requires only that the observation or recording be "done for a sexual purpose".

[54] Second, he did not identify any reasonable inference other than that the purpose of the videos was sexual. In R. v. Taylor, 2015 ONCJ 449, the accused took pictures of women's buttocks while they were sunbathing in thong bathing suits on a beach. When considering the sexual purpose component of the offence of voyeurism, the trial judge concluded that he could not discount the possibility that the pictures were taken for aesthetic reasons as some artists do. In this case, one would have to speculate to find any such inference arising from the evidence or lack of evidence on this record.

[55] I would therefore allow the Crown appeal on the ground it raised. However, I am required to turn to the two issues properly raised by the respondent, regarding errors he submits the trial judge made and which, if decided in his favour, would lead to the dismissal of the appeal.

2) Did the trial judge err in his decision to admit the evidence resulting from the initial warrantless search of the camera pen under s. 24(2) of the Charter?

(1) The initial warrantless search

[56] In his ruling on the s. 8 Charter claim, the trial judge reviewed in detail the evidence surrounding the search of the pen. Officer Campbell first obtained the pen from the superintendent who had been called by the principal. Officer Campbell attended at the school and was fully briefed by the superintendent of everything that had occurred there. She then received the pen on the understanding that the school board wanted to know if the pen contained evidence of criminal activity. She consulted with Detective Howe, who suggested that she ask the respondent for an explanation as to what photos, if any, were on the camera pen. The respondent refused to talk to her on the advice of his lawyer. Detective Howe then instructed Officer Campbell to give the pen to Chris Lipscombe, a computer forensic analyst with the London Police Service.

[57] Detective Howe had determined that the pen had been "legitimately" obtained by the police from the school staff and that the respondent had turned it over to the school staff "voluntarily".

[58] He believed there may have been surreptitious videoing of students, but knew that would only be an offence if the recordings had been made for a sexual purpose. Further, he believed that his investigation was at a stand-still until he knew more about what images were on the camera. He did no investigation at all. He also believed he did not have grounds to either arrest the respondent or to obtain a search warrant, and that the only way he could investigate was to "preview" the contents of the camera pen without a warrant.

[59] He testified at the preliminary inquiry that he believed he could conduct a cursory search without a warrant in this case, based on the case of R. v. Polius (2009), 196 C.R.R. (2d) 288 (Ont. S.C.), which held that a cursory search of a cell phone incident to arrest was permissible. Both he and Mr. Lipscombe testified at the preliminary inquiry that they had conducted these types of warrantless "cursory" searches on multiple occasions.

[60] Mr. Lipscombe's examination revealed a USB drive inside the pen. He did a "cursory search" which revealed several active video files. He and Detective Howe viewed three of them. The first was of an empty classroom. The second showed the camera panning several times from the face to the breasts of an adult female that appeared to be in a lunch room. The third showed the camera again panning several times from the face to the breasts, but of a 14 or 15 year old girl in a classroom.

[61] Based on this examination, Detective Howe obtained a warrant to search the entire contents of the pen camera. Following that search, he had reasonable and probable grounds to arrest the respondent for voyeurism. He also obtained a warrant to search the respondent's home including his computers there, but nothing was found.

(2) The trial judge's analysis

[62] Based on these findings, the trial judge then addressed the s. 8 issue in two stages. The first was whether the police were entitled to search the camera pen at all without a warrant. Following an extensive canvass of the relevant jurisprudence, including the cases of R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; Polius; R. v. Manley, 2011 ONCA 128, 269 C.C.C. (3d) 40; R. v. B.-H., 2013 ONSC 1183; and R. v. Rafferty, 2012 ONSC 703, he concluded: 1) the respondent had a limited expectation of privacy in the camera pen USB device; and 2) there was no basis in law for the police to conduct any kind of warrantless search of the device when the search was not incident to arrest. The initial, cursory search of the camera pen therefore constituted a breach of the respondent's s. 8 right. That finding is not challenged by the Crown on this appeal.

[63] The second stage was whether the evidence could be admitted under s. 24(2) of the Charter, applying the Grant factors: the seriousness of the Charter infringing conduct; the impact of the Charter violation on the Charter-protected interest of the respondent; and society's interest in the adjudication of the case on its merits.

[64] On the first factor, the seriousness of the Charter-infringing conduct, the trial judge found that the jurisprudence surrounding the issue of preview searches of computer-type devices, whether or not incident to arrest, was somewhat conflicting at the time of the police conduct in this case, referring to such cases as Polius; R. v. Fearon, 2010 ONCJ 645, aff'd 2013 ONCA 106, aff'd 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; and Cole. He therefore concluded that Detective Howe's decision to preview search the camera without grounds to arrest and without a warrant was not egregious or in bad faith. Similarly, he concluded that the fact that these types of searches were done somewhat routinely by the London police force constituted a reasonable misunderstanding of the law. He further found that, despite the evidence of Mr. Lipscombe that the USB device was a full storage device that could contain all of the information that could be stored on a computer, the fact that the pen was only used as a camera meant that the respondent had a limited expectation of privacy in its contents. On the first factor, therefore, he concluded that admitting the evidence would not send a message of condonation of police misconduct and that it favoured admission of the evidence.

[65] Dealing with the second factor, the impact on the Charter-protected interest of the respondent, in concluding that the violation was not very serious, the trial judge likened the camera pen to a contraband item (for example, a bag of illegal drugs or a weapon) seized by the employer, as opposed to a computer or password-protected electronic device. He noted that any subjective expectation of privacy by the respondent in the camera pen "may be deemed objectively unreasonable". He also referred to the discoverability of the contents with a warrant as a factor that minimized the impact of the breach on the respondent, although he accepted Detective Howe's concession that he did not have the grounds to obtain a warrant. His conclusion on the second Grant factor was that it also favoured admission.

[66] The third factor also favoured admission, as the evidence was probative, it existed independently of the breach, and was necessary for an important prosecution.

[67] Weighing all of the factors in the balancing process mandated by R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 36, the trial judge found that the repute of the administration of justice would not be better served by exclusion of the evidence.

(3) Analysis of Charter ground

[68] The respondent submits that although deference is to be accorded to a trial judge's decision to admit or exclude evidence under s. 24(2) of the Charter, in the course of his analysis, the trial judge ignored or mischaracterized evidence thereby leading to errors in his application of the Grant test.

[69] He focuses on five alleged errors: 1) failing to give sufficient legal effect to the admission by the police that they had no reasonable grounds for arrest or for a warrant, and used that lack of evidence as a basis for the illegal "cursory" search; 2) relying on the law regarding searches incident to arrest, when it had no application in this case; 3) erroneously rejecting the expert evidence that the pen camera's USB device could contain the same core biographical information as a computer; 4) ignoring the fact that the original warrantless search led to a warrant to conduct a much more intrusive search of the respondent's home and computers; and 5) finding that the police actions were not deliberate when they did no investigation and relied on their routine practice of conducting cursory searches without a warrant.

[70] These grounds have to be assessed within the parameters of the three Grant factors. The submission is that the trial judge improperly minimized the seriousness of the conduct of the police as well as the effect on the respondent.

[71] I agree with the respondent that the trial judge erred when he found that there was conflicting jurisprudence regarding the ability of the police to search a device without a warrant and not as an incident to arrest. In fact, the law was and is clear that subject to the existence of exigent circumstances, the police may not search a computer-like device without a warrant when it is not incident to arrest. This court's decision in Cole, which held that the police could not search without a warrant a school-board owned computer that was assigned to a specific teacher because the teacher had a reasonable expectation of privacy in the contents of the computer, was released in March 2011, over two months before the arrest of the respondent. And of course, there are also limits on a search that can be conducted incident to arrest: see Cole; Manley; Polius; and R. v. Aviles, 2017 ONCA 629.

[72] As there was no conflicting jurisprudence, the trial judge's characterization of Detective Howe's understanding of the law and his basis for conducting the cursory search were without foundation. Detective Howe testified that he was relying on the case of Polius, which involved the search of a cell-phone incident to arrest. However, he knew that he had no reasonable and probable grounds for arrest, or for a warrant. Any search he were to conduct would not be incident to arrest. And he believed he could go no further in the investigation without searching the camera to see the nature of the photographs.

[73] These circumstances can be compared with those in Cole, where the Supreme Court found that at the time of the police search of the teacher's school-board owned computer, the law governing an employee's privacy interest in a work computer remained unsettled. In that case, the police officer believed he could search the computer without a warrant. The Supreme Court found his belief to be erroneous but understandable. In this case, Detective Howe did not believe he could search the camera pen without a warrant but proceeded to do so regardless.

[74] In my view, based on this evidence, the trial judge had no basis to find that the police acted in good faith by conducting their initial search of the camera. The police service in London had developed its own process of preliminary cursory searches for the sole purpose of obtaining evidence that could form the basis to seek judicial authorization for a search warrant or to make an arrest. This was a clear violation of s. 8 of the Charter. The first Grant factor clearly favours exclusion of the evidence.

[75] As the Supreme Court explained in Grant at para. 76, the second factor:

[C]alls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed…. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

[76] As examples of serious infringements, the court pointed to statements obtained in breach of the s. 7 right to silence, or where the search "intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity": paras. 77-78.

[77] In this case, the respondent had a diminished expectation of privacy in his camera pen for three reasons. First, he was using it at school, where the administration had supervisory jurisdiction over him and had the authority to seize and search its contents when he was caught taking pictures of the students. Second, many of the privacy concerns related to search history or communication were not present in this device. Although the USB storage in the camera was capable of storing personal information if such information had been transferred onto it, the device was not connected to the internet nor could it send or receive email or other communication. Third, the storage device did not in fact contain any personal information, but only the impugned videos of other people, in which the respondent had no privacy interest: see Cole, at para. 27. On the other hand, based on the initial search, the police obtained a warrant to search the respondent's home, which was much more intrusive of his privacy.

[78] There is also a somewhat confused issue regarding whether the police could have obtained a warrant and its significance. Detective Howe was satisfied that he could not obtain a search warrant and the trial judge appeared to accept that view. However, had the officer conducted an investigation by interviewing the other teacher who observed the respondent apparently photographing female students surreptitiously, or had the school authorities viewed the camera videos and advised the police of their contents, there would have been evidence upon which to seek and obtain a warrant.

[79] Under the first Grant factor this fact could serve to undermine the good faith of police if they were cavalier about not obtaining a warrant: see R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at paras. 63-64. When assessing the second Grant factor it is a consideration that may militate against the seriousness of the actual intrusion: see Cole, at para. 93.

[80] Given the significantly diminished expectation of privacy in the contents of the camera pen, both because of the contents themselves and the circumstances when the videos were taken, the second Grant factor favours admission of the evidence.

[81] The respondent submits that although the evidence was critical to the prosecution, and existed independently of the s. 8 breach, this offence falls at the less serious end of the spectrum because it is merely voyeurism and the students in the videos were fully clothed. He therefore argues that the third factor does not favour admission of the evidence. I would reject this submission. This offence involved multiple breaches of trust by a high school teacher, which heightens the public interest in its prosecution. In my view, the third Grant factor also favours admission of the evidence.

[82] The balancing exercise in this case weighs the seriousness of the breach on the part of the police, against the significantly reduced expectation of privacy in the contents of the camera pen, being surreptitious videos taken by a teacher of his students in class. The third factor, as it often does, tips the balance in favour of admission.

[83] Given the significantly reduced expectation of privacy in the camera contents, on balance, I am not satisfied that the admission of the evidence would bring the administration of justice into disrepute. I would therefore not give effect to this argument by the respondent as to why a new trial should not be ordered.

3) Did the trial judge err in finding that the videos were taken in circumstances that gave rise to a reasonable expectation of privacy?

(1) A component of the offence

[84] It will be recalled that s. 162(1) makes it an offence to either observe or to make a video of a person, surreptitiously, where the person is "in circumstances that give rise to a reasonable expectation of privacy" in one of three situations: (a) the person is in a place where nudity or sexual activity are expected; (b) the person is nude or in the course of sexual activity; or (c) the purpose of the observation or of making the video is sexual.

[85] The concept of a reasonable expectation of privacy has been given extensive and ongoing judicial consideration in the context of a person's Charter right to privacy from intrusion by the state, in particular under ss. 8 and 7 of the Charter. In that context, the right to privacy is the right to exclude the state, without prior judicial authorization, from one's home or other places under one's control, or from one's person, with the purpose of protecting personal dignity and personal information.

[86] In the context of this offence, the protection is not from the state but from other people. There is no issue of prior judicial authorization. And it is not concerned with protecting the privacy of personal information, whether of an accused or of a complainant. It is applicable solely to a complainant's privacy interest in not having their body viewed or video-recorded in a sexual context. The question is, in what circumstances does that privacy interest arise?

[87] Every person is entitled to expect to be able to protect their personal sexual integrity and dignity from non-consensual visual intrusion by other people. While the offence of voyeurism in s. 162 is intended to provide that protection, Parliament has imposed a number of limitations on its application.

[88] First, the observation or videoing of another person is only an offence if it is done surreptitiously. It is not an offence to openly stare at another person or video them in one of the three prohibited situations. Arguably, this limitation recognizes and acknowledges that a person can consent to or acquiesce in being stared at or videoed, if the person is aware that it is happening. Similarly, when a person is aware that they are being observed or recorded, they can object, say no, turn away, leave, or take other steps to protect themselves from such an intrusion if it is unwanted.

[89] Second, the offence is limited to the three circumstances that constitute it. They all involve the visual protection of the person's sexual integrity. Therefore, it is not an offence to surreptitiously make a video of another person where their sexual integrity is not being compromised.

[90] The third limitation is that the person who is surreptitiously observed or visually recorded must be in circumstances that give rise to a reasonable expectation of privacy. Where the observation or videoing is done in circumstances where the person being secretly stared at or videoed does not have a reasonable expectation of privacy, the conduct by the perpetrator is not an offence.

[91] In my view, this limitation recognizes that we live in an open society where visual interaction is part of everyday life and is valued. Today, most people have cameras and many take pictures and videos as part of day-to-day life. They also post pictures on the internet to widely disseminate events that are occurring. And of course, freedom of the press includes making visual recordings as part of the news reporting process. By limiting the offence of voyeurism to circumstances where a person has a reasonable expectation of privacy, Parliament is acknowledging a limit on the ability of the state to completely protect visual sexual integrity in our open society.

(2) Definition of "Privacy"

[92] Although no one wants their sexual integrity compromised or abused by surreptitious observation or videoing, whether the videos are taken in a public gathering or in a private setting, Parliament limited the applicability of the offence of voyeurism to circumstances where the person being surreptitiously observed or visually recorded has a reasonable expectation of privacy.

[93] The dictionary definition of "privacy" from the Oxford English Dictionary is: "a state in which one is not observed or disturbed by other people; the state of being free from public attention."

[94] This definition appears to focus on a person's location as the governing factor for their reasonable expectation of privacy. This, I would suggest, is the common and typical understanding of the concept. A person expects privacy in places where the person can exclude others, such as one's home or office, or a washroom. It is a place where a person feels confident that they are not being observed.

[95] However, as part of the reasonable expectation of privacy requirement of the offence, Parliament included the concept of "circumstances" that give rise to that expectation. Arguably, there will be circumstances where it is possible to have a limited reasonable expectation of privacy in a public place.

[96] One example may be if the privacy expectation is limited to areas of the body that are covered or hidden. An offence that has become more common and required specific legislation in a number of U.S. states is referred to as "upskirting": one way it is done is a person drops something at the feet of a woman wearing a skirt, then bends down to pick it up, and takes a picture of her underneath her skirt. Often these pictures are then posted online. In my view, that would be a circumstance where a woman in a public place had a reasonable expectation of privacy that no one would look under her skirt.

[97] The issue of whether there are circumstances where a person can have a reasonable expectation of privacy in a public place, that is, a place that is open to the public or a segment of the public, and where the person knows they are not alone has had only limited judicial consideration. It was one of the issues faced in two cases referred to by the trial judge, Rudiger and Lebenfish, with differing results.

[98] In Rudiger, the accused was positioned in a van, using a video camera that zoomed in to view and record very young children playing in a park, focusing in on their genital and buttocks regions. The court concluded that the children's caregivers had a reasonable expectation of privacy from such enhanced observation and recording, even though they were in an open park. In Lebenfish, the complainant was sunbathing nude at Hanlan's Point, a nude beach on the Toronto Islands. The court held that she did not have a reasonable expectation of privacy, taking into account a number of factors including that the beach was public with clothing optional.

(3) The trial judge's finding

[99] The trial judge found that the students who were surreptitiously videoed by the respondent with his camera pen had a reasonable expectation of privacy within the school. His conclusion is contained in the following paragraphs:

There is no dispute that the female students had a subjective expectation of privacy. Although instances may exist at school where students do not have a reasonable expectation of privacy, for example, being inadvertently recorded by security cameras, photographed in the background of a picture, or incidentally recorded in another fleeting or transitory manner, in the circumstances of this case, in my opinion, the students had a reasonable expectation of privacy.

Each subject in question was in a classroom or outside of the school, with the actual or imputed knowledge that there are security cameras in the school at various locations. While the individual's expectation is certainly lower and different than if they were in their own private home, nevertheless there still remains a reasonable expectation of privacy and it can be violated.

Here, the recordings are of diverse and somewhat prolonged duration in circumstances where the students' spatial integrity in or about the school was impacted in a most surreptitious manner. All this gives rise to an expectation of privacy by the students. I find that the female students had an expectation of privacy that was, in fact, reasonable. The Crown has proven this essential element.

[100] The respondent submits on this appeal that this analysis does not bear scrutiny and that the trial judge erred in his interpretation and application of the statutory requirement that the conduct take place in circumstances that give rise to a reasonable expectation of privacy.

[101] He argues that the trial judge conflated two separate requirements of the offence, the surreptitious requirement with the privacy expectation requirement. The trial judge interpreted the privacy expectation in the context of the expectation not to be surreptitiously recorded. In his analysis, the trial judge stated:

One can conceive of situations or examples where a person, sitting in a classroom has her privacy interests interfered with. Such an individual, a student in the case, sitting in class, or dialoguing with a teacher or classmates does not reasonably anticipate that someone with a hidden camera, may record the interaction.

[102] Similarly, in the agreed statement of facts the subjective privacy expectation of the students is described as follows:

Mr. Jarvis never obtained the consent of any of the students to video and/or audio record them. Each student had a subjective expectation of privacy that they would not be surreptitiously audio and/or video recorded by Mr. Jarvis.

(4) Analysis

[103] Both the trial judge and the parties describe the expectation of privacy as an expectation that the teacher would not breach their relationship of trust by surreptitiously recording them without their consent. I agree with the respondent that this articulation conflates the two concepts of privacy and surreptitious recording, which are two separate requirements of the offence. It also relates them to the concept of lack of consent, which is not a specific requirement of the offence, but which is captured by the fact that the observation or video must be done surreptitiously.

[104] It is clear that students expect a school to be a protected, safe environment. It should be a place where their physical safety, as well as their personal and sexual integrity is protected. However, the areas of the school where students congregate and where classes are conducted are not areas where people have any expectation that they will not be observed or watched. While access to school property is often restricted, access is granted to students, teachers, other staff, and designated visitors. Those who are granted access are not prohibited from looking at anyone in the public areas. Here there were security cameras in many locations inside and outside the school. No one believed they were not being observed and recorded.

[105] Clearly, students expect that a teacher will not secretly observe or record them for a sexual purpose at school. However, that expectation arises from the nature of the required relationship between students and teachers, not from an expectation of privacy. The expectation would also prevail, I would suggest, if a student met a teacher at a mall.

[106] While it may have been open to Parliament to draft the offence of voyeurism more broadly, so that all surreptitious (non-consensual) observing and/or recording of a person who is within the circumstances listed in subsections (a), (b) and (c) is covered by this criminal offence, Parliament specifically included the additional requirement of "circumstances that give rise to a reasonable expectation of privacy".

[107] It is a trite rule of statutory interpretation that every word in the statute must be given a meaning: see Ruth Sullivan, Statutory Interpretation, 2d ed. (Toronto, Ont.: Irwin Law Inc., 2007). Therefore, the words "in circumstances that give rise to a reasonable expectation of privacy" must add something to the offence.

[108] In my view, as a matter of statutory interpretation, for the purpose of s. 162(1)(c), in order to give the requirement of "circumstances that give rise to a reasonable expectation of privacy" any effect where the person being surreptitiously videoed is not naked or doing a private sexual or toileting act, the person must be in circumstances, including type of place, where they expect privacy. If the fact that they are being surreptitiously recorded without their consent for a sexual purpose were enough to give rise to a reasonable expectation of privacy, that would make the privacy requirement redundant. If a person is in a public place, fully clothed and not engaged in toileting or sexual activity, they will normally not be in circumstances that give rise to a reasonable expectation of privacy.

CONCLUSION

[109] The respondent breached his relationship of trust with his students by surreptitiously videoing them for a sexual purpose. However, as discussed above, in order for the surreptitious video recording of students for a sexual purpose to be criminal conduct within the offence of voyeurism, the Crown had to prove that the students were in circumstances that gave rise to a reasonable expectation of privacy.

[110] I conclude that the trial judge erred in law by finding that the students were in circumstances that gave rise to a reasonable expectation of privacy, within the meaning of s. 162 of the Code, while engaging in normal school activities and interactions in the public areas of the school where there were many other students and teachers.

RESULT

[111] Although I conclude that the trial judge erred in his finding that the videos were not made for a sexual purpose, and therefore would allow the Crown appeal on that basis, I would dismiss the appeal because the Crown failed to prove the other component of the offence, that it occurred in circumstances which gave rise to a reasonable expectation of privacy.

"K. Feldman J.A."

"I agree. David Watt J.A."

Huscroft J.A. (Dissenting):

[112] I agree with my colleagues that the trial judge erred in finding that the visual recordings were not made for a sexual purpose. I also agree that the trial judge did not err in admitting the evidence under s. 24(2) of the Charter.

[113] However, with respect, I do not agree that the trial judge erred in concluding that the visual recordings were made in circumstances that give rise to a reasonable expectation of privacy.

[114] I begin with some general observations about the nature of privacy. I will then outline my concerns with the majority's conception of the reasonable expectation of privacy in s. 162(1) of the Criminal Code, before outlining my conception and applying it to the circumstances of this case.

Privacy and the reasonable expectation of privacy

[115] The importance of privacy is, as a matter of general principle, uncontroversial. Everyone values privacy – at least as far as their own affairs are concerned – and especially against state intrusion.

[116] But there is no consensus as to what respect for privacy requires – no consensus as to what a commitment to its protection entails. Technological developments challenge our ability to protect privacy: much that was once private because it was inaccessible is now easily accessible and capable of being shared widely. How are we to understand the reasonable expectation of privacy in these circumstances?

[117] The key point is that whether a person has a reasonable expectation of privacy is a normative or evaluative question rather than a descriptive or predictive one. It is concerned with identifying a person's legitimate interests and determining whether they should be given priority over competing interests. To say that a person has a reasonable expectation of privacy in some set of circumstances is to conclude that his or her interest in privacy should be prioritized over other interests. It is not a matter of describing or predicting what the individual's actual expectations are or would be.

[118] We often speak of privacy in terms of rights, but it is misleading to speak in terms of the "Charter right to privacy", as the majority decision does. The Charter does not include a freestanding right to privacy, nor has the Supreme Court of Canada recognized such a right in the course of interpreting the Charter. The Charter does not govern private relationships and has no application in the context of this case in any event. No question as to the constitutionality of the voyeurism offence is before the court on this appeal.

[119] The absence of a Charter right to privacy does not mean that privacy – and in particular, the reasonable expectation of privacy – has no constitutional significance. On the contrary, the concept is of central importance to the specification of the freedom from unreasonable search and seizure under s. 8; it is the organizing principle that guides the construction of the freedom from unreasonable search and seizure in order to resolve disputes in particular contexts: see Lawrence B. Solum, "The Interpretation-Construction Distinction" (2010) 27 Const. Commentary 95.

[120] The reasonable expectation of privacy performs a fundamentally different role in the context of the voyeurism offence with which we are concerned in this case, as I explain below.

The reasonable expectation of privacy in s. 162(1)

[121] Section 162(1) makes it an offence for anyone to surreptitiously observe or visually record a person who is in circumstances that give rise to a reasonable expectation of privacy, in three specific contexts:

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 activity; or

c) the observation or recording is done for a sexual purpose.

[122] How is this offence to be interpreted?

[123] The starting point is that the purpose of statutory interpretation is to determine the legislature's intended meaning. Parliament can be taken to have made a reasoned choice for the common good, and the role of the court is to understand that choice: Richard Ekins, The Nature of Legislative Intent, (Oxford: Oxford University Press, 2012) at pp. 246-47.

[124] The majority's approach to interpreting s. 162(1) focuses on the term "privacy" and one meaning of the term set out in the Oxford English Dictionary. This definition leads the majority to tie the protection of privacy to the location in which a privacy claim is asserted, as well as the ability to exclude others from that location. The difficulty with this approach is apparent from the examples the majority gives: a home, an office, and a washroom, all places "where a person feels confident that they are not being observed." These examples are both under- and overinclusive when considered in terms of the choice Parliament has made – the good that s. 162(1) is intended to protect.

[125] They are underinclusive because it is possible to conceive of claims to privacy that are entitled to protection – at least to some extent – in a variety of public places. For example, a woman breastfeeding an infant at a shopping mall or a workplace may have an attenuated expectation of privacy. She cannot expect not to be viewed while in a public place. But it does not follow that she has no reasonable expectation of privacy whatsoever. Privacy expectations need not be understood in an all-or-nothing fashion. In my view, there is a reasonable expectation that she will not be visually recorded surreptitiously for a sexual purpose. She has a reasonable expectation of privacy at least to this extent.

[126] At the same time, the majority's examples are overinclusive. It is possible to conceive of circumstances in which a person could have no reasonable expectation of privacy, or perhaps a diminished expectation of privacy despite being in a private or non-public place. For example, a person who stands in front of an open window may have a diminished expectation of privacy, at least for some purposes, regardless of whether he or she is at home or in his or her office.

[127] The majority acknowledges the possibility that a limited reasonable expectation of privacy in a public place may exist in some circumstances. But on the majority's approach, privacy in public places – which the majority defines as "a place that is open to the public or a segment of the public, and where the person knows they are not alone" – is likely so exceptional as to be rare. That is apparent from the "upskirting" example the majority provides. In my view, a privacy expectation limited to areas of the body that are covered or hidden from view when a person is in public is the very least that can reasonably be expected.

[128] In short, a location-based approach to privacy protection is problematic. Location is a relevant consideration in determining whether, in the language of s. 162(1), a person is "in circumstances that give rise to a reasonable expectation of privacy", but it is not determinative.

The high school students had a reasonable expectation of privacy in this case

[129] The majority considers that the trial judge conflated two separate elements of the offence, the surreptitious requirement and the reasonable expectation of privacy, and wrongly related them to the concept of a lack of consent. Although the majority accepts that students expect that their personal and sexual integrity would be protected at the school, the majority asserts at paras. 104-105 that students had no reasonable expectation that they would not be watched in areas of the school in which they congregate and where classes are held:

While access to school property is often restricted, access is granted to students, teachers, other staff, and designated visitors. Those who are granted access are not prohibited from looking at anyone in the public areas. Here there were security cameras in many locations inside and outside the school. No one believed they were not being observed and recorded.

Clearly, students expect that a teacher will not secretly observe or record them for a sexual purpose at school. However, that expectation arises from the nature of the required relationship between students and teachers, not from an expectation of privacy.

[130] According to the majority, people "must be in circumstances, including type of place, where they expect privacy", and the students were not.

[131] I see things differently. This case presents a straightforward question: should high school students expect that their personal and sexual integrity will be protected while they are at school? The considerations relevant to answering that question include the following:

• students are required to attend school for an educational purpose;

• schools are not public places open to all; access to them is controlled by school authorities;

• the high school's hallways and grounds are under 24-hour video surveillance, but the surveillance does not focus on particular students or their body parts;

• access to surveillance video recordings for personal use is not permitted; and

• school board policy prohibited the appellant from making the type of visual recordings that he made.

[132] The majority concludes that a person "in a public place, fully clothed and not engaged in toileting or sexual activity … will normally not be in circumstances that give rise to a reasonable expectation of privacy." I think that this is an unduly narrow conclusion. It undermines the good that s. 162(1) is intended to protect. It assumes that if complete privacy is not possible, one cannot have a reasonable expectation of privacy even to a limited extent.

[133] No doubt, students will be seen by other students, school employees and officials while they are at school. But this does not mean that they have no reasonable expectation of privacy. In my view, 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. They have a reasonable expectation of privacy at least to this extent, and that is sufficient to resolve this case.

[134] I do not accept the majority's suggestion that surreptitious recording for a sexual purpose is irrelevant in determining whether a person is in "circumstances that give rise to a reasonable expectation of privacy" – that the reasonable expectation of privacy must be determined independent of the conduct that threatens to compromise the students' personal and sexual integrity. In my view, the result of this approach is ironic: the scope of the voyeurism offence is narrowed by the very thing Parliament intended to protect in establishing the offence – the reasonable expectation of privacy. The result is the opposite of what one would expect: surreptitious visual recording of high school students for a sexual purpose, while they are at high school, is not illegal.

[135] As I have emphasized, the reasonable expectation of privacy is a normative rather than a descriptive or predictive concept. It must be established in particular rather than general circumstances. In my view, the high school students had a reasonable expectation of privacy in the circumstances of this case.

[136] I would allow the appeal and enter a conviction.

Released: "K.F." October 12, 2017

"Grant Huscroft J.A."

Footnotes

[1] See, for example, R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 91, where Moldaver J. refers to a right to privacy under s. 8. See also R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 17.

[2] See Timothy J. Horstmann, "Protecting Traditional Privacy Rights in a Brave New Digital World: The Threat Posed by Cellular Phone-Cameras and What States Should Do to Stop It" (2007) 111 Penn St. L. Rev. 739.