Supreme Court of Canada
R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488
Parties
Her Majesty The Queen — Appellant
v.
Ryan Jarvis — Respondent
— and —
Attorney General of British Columbia, Samuelson‑Glushko Canadian Internet Policy and Public Interest Clinic, Privacy Commissioner of Canada, Canadian Civil Liberties Association, Ontario College of Teachers, Information and Privacy Commissioner of Ontario, Women's Legal Education and Action Fund Inc. and Criminal Lawyers' Association (Ontario) — Interveners
Indexed as: R. v. Jarvis
File No.: 37833
2018: April 20; 2019: February 14.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
On appeal from the Court of Appeal for Ontario
Headnote
Reasons for Judgment: (paras. 1 to 92) Wagner C.J. (Abella, Moldaver, Karakatsanis, Gascon and Martin JJ. concurring)
Concurring Reasons: (paras. 93 to 148) Rowe J. (Côté and Brown JJ. concurring)
Criminal law — Voyeurism — Elements of the offence — Circumstances that give rise to reasonable expectation of privacy — Accused teacher using concealed camera to make surreptitious video recordings of female high school students engaging in ordinary school-related activities in common areas of school — Most video recordings focusing on faces, upper bodies and breasts of students — Students not aware of recording — Accused charged with voyeurism — Whether students recorded by accused were in circumstances giving rise to reasonable expectation of privacy — Criminal Code, R.S.C. 1985, c. C-46, s. 162(1).
The accused was an English teacher at a high school. He used a camera concealed inside a pen to make surreptitious video recordings of female students while they were engaged in ordinary school-related activities in common areas of the school. Most of the videos focused on the faces, upper bodies and breasts of female students. The students were not aware that they were being recorded by the accused, nor did they consent to the recordings. A school board policy in effect at the relevant time prohibited the type of conduct engaged in by the accused.
The accused was charged with voyeurism under s. 162(1)(c) of the Criminal Code. That offence is committed where a person surreptitiously observes or makes a visual recording of another person who is in circumstances that give rise to a reasonable expectation of privacy, if the observation or recording is done for a sexual purpose. At trial, the accused admitted he had surreptitiously made the video recordings. As a result, only two questions remained: whether the students the accused had recorded were in circumstances that give rise to a reasonable expectation of privacy, and whether the accused made the recordings for a sexual purpose. While the trial judge answered the first question in the affirmative, he acquitted the accused because he was not satisfied that the recordings were made for a sexual purpose. The Court of Appeal unanimously concluded that the trial judge had erred in law in failing to find that the accused made the recordings for a sexual purpose. Nevertheless, a majority of the Court of Appeal upheld the accused's acquittal on the basis that the trial judge had also erred in finding that the students were in circumstances that give rise to a reasonable expectation of privacy. The Crown appeals to the Court as of right on the issue of whether the students recorded by the accused were in circumstances that give rise to a reasonable expectation of privacy.
Held: The appeal should be allowed and a conviction entered.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon and Martin JJ.: The students recorded by the accused were in circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code.
Circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code are circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred. The inquiry should take into account the entire context in which the impugned observation or recording took place. Relevant considerations may include (1) the location the person was in when she was observed or recorded, (2) the nature of the impugned conduct (whether it consisted of observation or recording), (3) awareness of or consent to potential observation or recording, (4) the manner in which the observation or recording was done, (5) the subject matter or content of the observation or recording, (6) any rules, regulations or policies that governed the observation or recording in question, (7) the relationship between the person who was observed or recorded and the person who did the observing or recording, (8) the purpose for which the observation or recording was done, and (9) the personal attributes of the person who was observed or recorded. This list of considerations is not exhaustive and not every consideration will be relevant in every case.
The fact that it is an element of the offence in s. 162(1)(c) that observation or recording be done for a sexual purpose does not make it inappropriate to consider the purpose of the observation or recording in assessing whether it was done in breach of a reasonable expectation of privacy. In some cases, observation or recording may not breach expectations of privacy despite having a sexual purpose. In other cases, observation or recording may be an obvious breach of privacy regardless of its purpose and it can ground a conviction under s. 162(1) if the other elements of the offence are made out. Similarly, although the surreptitiousness of the observation or recording is an element of the offence in s. 162(1), this does not mean that it can never be considered in assessing whether the person who was observed or recorded had a reasonable expectation of privacy.
"Privacy", as ordinarily understood, is not an all-or-nothing concept, and being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording. Rather, whether observation or recording would generally be regarded as an invasion of privacy depends on a variety of factors, which may include a person's location, the form of the alleged invasion of privacy, the nature of the observation or recording, the activity in which a person is engaged when observed or recorded and the part of a person's body that is the focus of the recording. The fact that a variety of factors may influence whether a person would expect not to be observed or recorded is also consistent with Parliament's choice to express the element of the offence by reference to the "circumstances" that give rise to a reasonable expectation of privacy. Had Parliament intended to limit the types of circumstances that can be considered, it would have done so expressly.
The immediate statutory context of the words "circumstances that give rise to a reasonable expectation of privacy" lends further support to the view that this element of the offence is not governed solely or primarily by a person's physical location and does not limit the commission of the offence to traditionally private spaces. Paragraph (a) of s. 162(1) expressly circumscribes the scope of the prohibited observation or recording by reference to location and it would be incongruous with that paragraph to read the requirement that the person who is observed or recorded be in circumstances that give rise to a reasonable expectation of privacy as also being governed by location. Furthermore, the inclusion of paras. (b) and (c) in s. 162(1) indicates that Parliament understood that a person could have a reasonable expectation of privacy somewhere other than in a place where nudity or explicit sexual activity can reasonably be expected or is in fact taking place.
Parliament's object in enacting the voyeurism offence was to protect individuals' privacy and sexual integrity, particularly from new threats posed by the abuse of evolving technologies. Reading the expression "circumstances that give rise to a reasonable expectation of privacy" narrowly would undermine Parliament's intention that the offence prohibit surreptitious observation or visual recording that amounts to sexual exploitation or that represents the most egregious breaches of privacy.
The jurisprudence pertaining to s. 8 of the Canadian Charter of Rights and Freedoms is also instructive in interpreting s. 162(1). Parliament must be understood as having chosen the words "reasonable expectation of privacy" in s. 162(1) purposefully and with the intention that the existing jurisprudence on this concept would inform the content and meaning of those words. In addition, the s. 8 case law represents a rich body of judicial thought on the meaning of privacy in our society. Far from being unmoored from our ordinary perceptions of when privacy can be expected, judgments about privacy expectations in the s. 8 context are informed by our fundamental shared ideals about privacy as well as our everyday experiences.
In this case, when the entire context is considered, there can be no doubt that the students' circumstances give rise to a reasonable expectation that they would not be recorded in the manner they were. In particular, the subjects of the video recordings were teenage students at a high school. They were recorded by their teacher in breach of the relationship of trust that exists between teachers and students as well as in contravention of a formal school board policy that prohibited such recording. Significantly, the videos had as their predominant focus the bodies of students, particularly their breasts. In recording these videos, the accused acted contrary to the reasonable expectations of privacy that would be held by persons in the circumstances of the students when they were recorded.
Per Côté, Brown and Rowe JJ.: There is agreement that the students in this case were in circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code.
However, s. 8 Charter jurisprudence should not inform the interpretation of s. 162(1). First, the conceptual framework for defining Charter rights should remain distinct from that used to define the scope of Criminal Code offences. To interpret the wording in s. 162(1) by reference to the s. 8 jurisprudence would put the judiciary in the position of creating new common law offences, despite their abolition by s. 9(a) of the Criminal Code. Section 8 Charter jurisprudence evolves but the meaning in s. 162(1) is intended to remain fixed as of the time of its enactment. Second, the purpose and function of s. 8 and s. 162(1) are fundamentally at odds. The power imbalance of the police as agents of the state vis-à-vis a citizen that is at the heart of the preoccupation under s. 8 is not present under s. 162(1), as that provision protects invasions of privacy perpetrated by one individual against another. Third, the interests protected by s. 8 of the Charter include personal privacy, territorial privacy and informational privacy, whereas the reasonable expectation of privacy under s. 162(1) relates only to the protection of one's physical image. Finally, Charter values are a legitimate interpretive aid only in cases of ambiguity, and in this case, s. 162(1) is not legally ambiguous.
A multi-factored test to decide whether there is a reasonable expectation of privacy in the context of s. 162(1) should not be adopted. The offence of voyeurism is an extension of the criminal law to protect well-established interests of privacy, autonomy and sexual integrity in light of threats posed by new technologies that encroach upon them. Because voyeurism is a sexual offence, a reasonable expectation of privacy in the context of s. 162(1) should be interpreted in light of the harms contemplated in related provisions in the scheme for sexual offences in Part V of the Criminal Code. In the context of the voyeurism offence, "privacy" should be interpreted with regard to personal autonomy and sexual integrity.
An individual's privacy interest under s. 162(1) can only be infringed if they are recorded or observed in a way that both causes them to lose control over their image and also infringes their sexual integrity. This conjunctive test accords with what Parliament sought to protect by creating the offence. The ability to maintain control over what personal visual information is shared, and with whom, is a facet of privacy linked to personal autonomy. While the surreptitiousness of the observation or recording may signal circumstances that give rise to a reasonable expectation of privacy, the two elements remain distinct. The surreptitiousness of the observation or recording improperly removes the individual's ability to maintain control over how they are observed, and, because of its permanence, a recording compounds the denial of the subject's autonomy by giving the voyeur repeated access to the observations.
Whether the observation or recording is sexual in nature such that it infringes the sexual integrity of the subject should be decided on an objective standard and considered in light of all the circumstances. While the intent of the perpetrator may be relevant, it is not determinative. The sexual purpose inquiry under para. (c) of s. 162(1) is distinct from the determination of a violation of sexual integrity under the reasonable expectation of privacy analysis. An observation or recording will be done for a sexual purpose where the subject of the observation or recording is reasonably perceived as intended to cause sexual stimulation in the observer. An interpretation of sexual purpose that includes sexual gratification is consistent with the interpretation of the same phrase in other sections of the Criminal Code.
In this case, the students had a reasonable expectation of privacy regarding how their bodies would be observed in the classrooms and hallways of their school. The visual information was subject to their limitation and control, and the technology used by the accused allowed him to take videos of the clothed breasts of his students — for extended periods of time — in angles and in proximity that went beyond the access that the students allowed in this setting, thus infringing their autonomy. The recordings were also objectively sexual in nature. The focus of the recordings was on the young women's intimate body parts, at close range. In addition, and while not determinative, the recordings were made for a sexual purpose. The combination of these factors leads to the conclusion that by surreptitiously recording images of their breasts, the accused infringed the sexual integrity of the students.
Cases Cited
By Wagner C.J.
Referred to: R. v. Rudiger, 2011 BCSC 1397, 244 C.R.R. (2d) 69; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27; R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417; Dagg v. Canada (Minister of Finance), 1997 CanLII 358 (SCC), [1997] 2 S.C.R. 403; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; Srivastava v. Hindu Mission of Canada (Québec) Inc., 2001 CanLII 27966 (QC CA), [2001] R.J.Q. 1111; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281; R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128; Schreiber v. Canada (Attorney General), 1998 CanLII 828 (SCC), [1998] 1 S.C.R. 841; R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36; R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527; R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733; R. v. Sandhu, 2018 ABQB 112, 404 C.R.R. (2d) 216; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211; R. v. M. (M.R.), 1998 CanLII 770 (SCC), [1998] 3 S.C.R. 393; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. S.A.B, 2003 SCC 60, [2003] 2 S.C.R. 678; R. v. Taylor, 2015 ONCJ 449; A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567; R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171; Toronto Star Newspaper Ltd. v. Ontario, 2012 ONCJ 27, 255 C.R.R. (2d) 207.
By Rowe J.
Referred to: R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27; Perka v. The Queen, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232; Sharpe v. Wakefield (1888), 22 Q.B.D. 239; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; Frey v. Fedoruk, 1950 CanLII 24 (SCC), [1950] S.C.R. 517; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402; Dagg v. Canada (Minister of Finance), 1997 CanLII 358 (SCC), [1997] 2 S.C.R. 403; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743; University Health Network v. Ontario (Minister of Finance) (2001), 2001 CanLII 8618 (ON CA), 208 D.L.R. (4th) 459; R. v. Chartrand, 1994 CanLII 53 (SCC), [1994] 2 S.C.R. 864; R. v. Rudiger, 2011 BCSC 1397, 244 C.R.R. (2d) 69; Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236; R. v. Drapeau (1995), 1995 CanLII 5099 (QC CA), 96 C.C.C. (3d) 554; R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293; R. v. Bernard, 1988 CanLII 22 (SCC), [1988] 2 S.C.R. 833; R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909; R. v. V. (K.B.), 1993 CanLII 109 (SCC), [1993] 2 S.C.R. 857; R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333; R. v. Hinchey, 1996 CanLII 157 (SCC), [1996] 3 S.C.R. 1128; R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330; R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439; R. v. Larue, 2003 SCC 22, [2003] 1 S.C.R. 277; R. v. Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60; R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; R. v. Hewlett, 2002 ABCA 179, 167 C.C.C. (3d) 425; R. v. L.A.C., 2005 ABPC 217, 386 A.R. 102; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Landry, 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145; Semayne's Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194; R. v. Morrisey, 2011 ABCA 150; R. v. Colley, 2009 BCCA 289, 273 B.C.A.C. 107; R. v. M.B., 2014 QCCA 1643.
Statutes and Regulations Cited
An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32, preamble.
Bill C‑2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, 1st Sess., 38th Parl., 2004‑2005 (assented to July 20, 2005).
Canadian Charter of Rights and Freedoms, ss. 8, 24(2).
Criminal Code, R.S.C. 1985, c. C‑46, Parts V, XI, ss. 9(a), 151, 152, 153, 153.1, 162, 162.1(1), 177, 276.3, 278.1, 278.5, 430, 486, 486.4, 486.5.
Youth Criminal Justice Act, S.C. 2002, c. 1, s. 110.
Authors Cited
Canada. Department of Justice. Voyeurism as a Criminal Offence: A Consultation Paper. Ottawa, 2002.
Canada. Department of Justice. Voyeurism As A Criminal Offence: Summary of the Submissions, October 28, 2002 (online: http://www.justice.gc.ca/eng/cons/voy/final.html; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC10_1_eng.pdf).
Canada. House of Commons. House of Commons Debates, vol. 138, No. 46, 2nd Sess., 37th Parl., January 27, 2003, p. 2692.
Canada. Library of Parliament. Parliamentary Information and Research Service. Bill C‑2: An Act to Amend the Criminal Code (Protection of Children and Other Vulnerable Persons) and the Canada Evidence Act, Legislative Summary LS-480E, by Robin MacKay, Law and Government Division, October 13, 2004, revised June 16, 2005.
Craig, Elaine. Troubling Sex: Towards a Legal Theory of Sexual Integrity. Vancouver/Toronto: UBC Press, 2012.
Gavison, Ruth. "Privacy and the Limits of the Law" (1980), 89 Yale L.J. 421.
Gavison, Ruth. "Feminism and the Public/Private Distinction" (1992), 45 Stan. L. Rev. 1.
Jones, Brock. "Jarvis: Surely Schoolchildren Have A Reasonable Expectation of Privacy Against Videotaping for a Sexual Purpose?" (2017), 41 C.R. (7th) 71.
LaFave, Wayne R. and Austin W. Scott, Jr. Substantive Criminal Law, vol. 1, 2nd ed. St. Paul, Minn.: West Publishing Co., 1986.
Mewett, Alan W. and Morris Manning. Mewett & Manning on Criminal Law, 2nd ed. Toronto: Butterworths, 1985.
Parker, Richard B. "A Definition of Privacy" (1974), 27 Rutgers L. Rev. 275.
Paton‑Simpson, Elizabeth. "Privacy and the Reasonable Paranoid: The Protection of Privacy in Public Places" (2000), 50 U.T.L.J. 305.
Stewart, Hamish C. Sexual Offences in Canadian Law. Aurora, Ont.: Canada Law Book, 2004 (loose‑leaf updated October 2018, release 31).
Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014.
Westin, Alan F. Privacy and Freedom. Atheneum: New York, 1970.
APPEAL from a judgment of the Ontario Court of Appeal (Feldman, Watt and Huscroft JJ.A.), 2017 ONCA 778, 139 O.R. (3d) 754, 41 C.R. (7th) 36, 356 C.C.C. (3d) 1, 396 C.R.R. (2d) 348, [2017] O.J. No. 5261 (QL), 2017 CarswellOnt 15528 (WL Can.), affirming a decision of Goodman J., 2015 ONSC 6813, 345 C.R.R. (2d) 103, 25 C.R. (7th) 330, [2015] O.J. No. 5847 (QL), 2015 CarswellOnt 17226 (WL Can.). Appeal allowed.
Christine Bartlett‑Hughes and Jennifer Epstein, for the appellant.
Zachary Kerbel, Saman Wickramasinghe and Jennifer Micallef, for the respondent.
Written submissions only by Lara Vizsolyi, for the intervener Attorney General of British Columbia.
Jane Bailey and David Fewer, for the intervener Samuelson‑Glushko Canadian Internet Policy and Public Interest Clinic.
Written submissions only by Regan Morris and James Nowlan, for the intervener Privacy Commissioner of Canada.
Jonathan C. Lisus and Zain Naqi, for the intervener Canadian Civil Liberties Association.
Caroline R. Zayid, Adam Goldenberg and Caroline H. Humphrey, for the intervener Ontario College of Teachers.
Stephen McCammon, for the intervener Information and Privacy Commissioner of Ontario.
Gillian Hnatiw, Karen Segal and Alex Fidler-Wener, for the intervener Women's Legal Education and Action Fund Inc.
Matthew Gourlay and Kate Robertson, for the intervener Criminal Lawyers' Association (Ontario).
Reasons for Judgment
The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon and Martin JJ. was delivered by
The Chief Justice —
I. Overview
[1] In 2005, Parliament enacted a new criminal offence called voyeurism in s. 162(1) of the Criminal Code, R.S.C. 1985, c. C-46. This offence is committed when a person surreptitiously observes or makes a visual recording of another person who is in "circumstances that give rise to a reasonable expectation of privacy", if the observation or recording is done in one of the three situations described in paras. (a) through (c) of s. 162(1). Section 162(1)(c), in particular, applies when the observation or recording is done for a sexual purpose.
[2] Mr. Ryan Jarvis, the respondent in this appeal, was charged with voyeurism contrary to s. 162(1)(c) of the Criminal Code after he used a camera concealed inside a pen to make video recordings of female students at the high school where he was a teacher. Mr. Jarvis recorded students while they were engaged in ordinary school-related activities in common areas of the school, including classrooms and hallways. Most of the videos focused on the faces and upper bodies of female students, particularly their chests. The students did not know that they were being recorded.
[3] Mr. Jarvis was acquitted at trial because the trial judge was not satisfied beyond a reasonable doubt that he had made the recordings for a sexual purpose. The acquittal was upheld by a majority of the Ontario Court of Appeal. While the Court of Appeal was of the unanimous opinion that Mr. Jarvis had made the videos for a sexual purpose, the majority held that the students recorded by him were not in circumstances that give rise to a reasonable expectation of privacy, as required for a conviction under s. 162(1). A dissenting judge was satisfied that the students recorded by Mr. Jarvis were in circumstances that give rise to a reasonable expectation of privacy and would have entered a conviction on that basis.
[4] The Crown now appeals to this Court as of right. The only issue in the appeal is whether the Court of Appeal erred in finding that the students recorded by Mr. Jarvis were not in circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code.
[5] In my view, circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code are circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred. To determine whether such circumstances exist, a court must have regard to the entire context in which the observation or recording was made.
[6] As I will explain, there can be no doubt in the case at bar that the students recorded by Mr. Jarvis were in circumstances in which they would reasonably have expected not to be the subject of videos predominantly focused on their bodies, particularly their breasts — and a fortiori not to be the subject of such videos made by their teacher for a sexual purpose.
II. Background
[7] At the times relevant to the charge in the case at bar, Mr. Jarvis was an English teacher at a high school in London, Ontario. In June 2011, a fellow teacher informed the principal of the school that he believed Mr. Jarvis was surreptitiously recording female students at the school using a camera. The police were contacted, and a search warrant was obtained and executed. A pen was seized from Mr. Jarvis.
[8] The pen seized from Mr. Jarvis performs a number of functions. It can be used to write. It is also outfitted with a camera that can be used to record videos with audio. The pen does not have a screen on which the user can see what is being or has been recorded. The camera does not have the ability to record a live feed. When it is recording, no light or other indication is visible to an observer. The pen must be pointed in the direction in which a recording is to be made.
[9] The electronic contents of the pen camera, which were eventually entered into evidence, consisted of 35 video files: 17 "active" videos, 2 deleted videos and 16 recovered video files (2 of which could not be played). Mr. Jarvis admitted that he had recorded all of these videos using the pen camera while at school.
[10] The videos recorded by Mr. Jarvis range in length from a few seconds to several minutes. They were shot in locations in and around the school, including hallways, classrooms, the cafeteria and the school grounds. Most of the videos focus on female students at the school. At the time the videos were made, the students who could be identified were between 14 and 18 years of age. In most of the videos, the camera focused on the faces, upper bodies and breasts of female students, often in sustained close-up.
[11] None of the students were aware that they were being recorded, and none of them consented to being recorded. Nor did Mr. Jarvis have the school's permission to video or audio record students. Indeed, a school board policy in effect at the time Mr. Jarvis made the videos prohibited his conduct in making the recordings.
[12] The police identified 27 of the individuals in the videos as female students at the high school and charged Mr. Jarvis with 27 counts of voyeurism contrary to s. 162(1)(c) of the Criminal Code. At the commencement of the trial, those charges were replaced with one global charge under s. 162(1)(c).
III. Judicial History
A. Ontario Superior Court of Justice (Goodman J.), [2015 ONSC 6813](https://www.minicounsel.ca/scj/2015/6813), 345 C.R.R. (2d) 103
[13] The evidence at trial consisted of the videos recovered from the pen camera,[^1] an agreed statement of facts and a photo exhibit entered on consent. In the agreed statement of facts, Mr. Jarvis admitted that he had recorded the videos recovered from the pen camera and that he had done so surreptitiously. Mr. Jarvis' application to have the videos excluded under ss. 8 and 24(2) of the Charter was denied.
[14] The trial judge answered the first question in the affirmative. He concluded that, in the context of the offence in s. 162(1), whether a person who is observed or recorded is in circumstances that give rise to a reasonable expectation of privacy does not depend solely on the physical location in which she is observed or recorded.
[15] However, the trial judge was not satisfied that Mr. Jarvis had made the recordings for a sexual purpose. Based on his review of the videos, he determined that Mr. Jarvis had positioned the pen camera to focus "for the most part, on the female students' faces, bodies and cleavage or breasts, and sometimes on their chests without the cleavage being obvious", but concluded, on the basis of the totality of the evidence, that the Crown had not proved beyond a reasonable doubt that Mr. Jarvis had made the recordings for a sexual purpose. He therefore acquitted Mr. Jarvis.
B. Court of Appeal for Ontario (Feldman J.A., Watt J.A. Concurring; Huscroft J.A. Dissenting), [2017 ONCA 778](https://www.minicounsel.ca/oca/2017/778), 139 O.R. (3d) 754
[16] On the Crown's appeal from the acquittal, the Court of Appeal for Ontario was unanimously of the view that the trial judge had erred in law in failing to find that Mr. Jarvis had made the recordings at issue for a sexual purpose. According to the Court of Appeal, this was an "overwhelming case" for finding that the recordings were made for a sexual purpose.
[17] Nevertheless, a majority of the Court of Appeal upheld Mr. Jarvis' acquittal on the basis that the trial judge had also erred in finding that the students recorded by Mr. Jarvis were in circumstances that give rise to a reasonable expectation of privacy when they were recorded. The majority was of the view that the relevant question for determining whether a person is in circumstances that give rise to a reasonable expectation of privacy is whether the person is in a private place — that is, a place from which that person can exclude others. Applying this test, the majority held that the students were not in circumstances that give rise to a reasonable expectation of privacy when they were recorded, since they were in common areas of the school, including classrooms and hallways, which are places from which they could not exclude others.
[18] Huscroft J.A. dissented. In his view, whether a person is in circumstances that give rise to a reasonable expectation of privacy, within the meaning of s. 162(1), should not depend solely on a person's location and ability to exclude others from that location. He stated that, to ascertain whether a person has a reasonable expectation of privacy, one must consider the whole context in which observation or recording occurs. Applying this approach, he would have found that the students were in circumstances that give rise to a reasonable expectation of privacy.
[19] The Crown now appeals to this Court as of right on the issue of whether the majority of the Court of Appeal erred in finding that the students recorded by Mr. Jarvis were not in circumstances that give rise to a reasonable expectation of privacy.
IV. Analysis
[20] This appeal requires the Court to consider, for the first time, the elements of the offence created by s. 162(1) of the Criminal Code. That provision reads as follows:
Voyeurism
162 (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if
(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;
(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or
(c) the observation or recording is done for a sexual purpose.
[21] Mr. Jarvis is charged with committing the offence of voyeurism contrary to s. 162(1)(c) of the Criminal Code. That offence is committed where a person surreptitiously observes or makes a visual recording of another person who is in circumstances that give rise to a reasonable expectation of privacy, if the observation or recording is done for a sexual purpose.
[22] It is no longer in dispute that Mr. Jarvis surreptitiously made video recordings of female students at the high school and that he did so for a sexual purpose. Thus, there remains a single question in this appeal: were the students recorded by Mr. Jarvis in "circumstances that give rise to a reasonable expectation of privacy" as required under s. 162(1)(c) of the Criminal Code?
[23] In order to answer this question, I will first consider what it means for a person who is observed or recorded to be in "circumstances that give rise to a reasonable expectation of privacy" as that expression is used in s. 162(1) of the Criminal Code. I will then consider the facts of the case at bar in light of that understanding of the expression.
A. When Is a Person Who Is Observed or Recorded in "Circumstances That Give Rise to a Reasonable Expectation of Privacy" for the Purposes of Section 162(1) of the *Criminal Code*?
[24] What does it mean, in the context of s. 162(1) of the Criminal Code, for a person who is observed or recorded to be in "circumstances that give rise to a reasonable expectation of privacy"? The parties agree that this question of statutory interpretation must be answered by reading the words of s. 162(1) in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
(1) Positions of the Parties
[25] In his factum in this Court, Mr. Jarvis argued that this interpretive approach leads to the conclusion that circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) are circumstances in which a person has a reasonable expectation that she, or a part of her body, will not be observed. He further argued that such an expectation can only arise where a person has some ability to control who may visually access her.
[26] According to Mr. Jarvis, the circumstances relevant to whether a reasonable expectation of privacy arises in a particular context may include the physical features of the space in which a person is located and the degree of control the person has over who may obtain visual access to her in that space. However, Mr. Jarvis argued that the element of the offence in s. 162(1) with which this Court is concerned is governed primarily by the physical location in which the observation or recording takes place and requires a threshold showing that the person who was observed or recorded was in a private place.
[27] The Crown, by contrast, argues that the majority of the Court of Appeal erred by adopting an unduly narrow, location-based understanding of privacy. The Crown submits that whether a reasonable expectation of privacy arises in a given situation should be determined on the basis of the totality of the circumstances surrounding the impugned observation or recording.
(2) Meaning of the Expression "Circumstances that Give Rise to a Reasonable Expectation of Privacy" in Section 162(1)
[28] In my view, circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) are circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred. The inquiry into whether a person who was observed or recorded was in such circumstances must take into account the entire context in which the observation or recording was made.
[29] The following non-exhaustive list of considerations may assist a court in determining whether a person who was observed or recorded was in circumstances that give rise to a reasonable expectation of privacy:
(1) The location the person was in when she was observed or recorded. The fact that the location was one from which the person had sought to exclude all others, in which she felt confident that she was not being observed, or in which she expected to be observed only by a select group of people may indicate that she was in circumstances that give rise to a reasonable expectation of privacy. However, the fact that the location was a "public" or "semi-public" place does not, without more, preclude such a finding.
(2) The nature of the impugned conduct, that is, whether it consisted of observation or recording. Given that recording is more intrusive on privacy than mere observation, a person's expectation regarding whether she will be observed may reasonably be different than her expectation regarding whether she will be recorded.
(3) Awareness of or consent to potential observation or recording. I will discuss further how awareness of observation or recording may inform the reasonable expectation of privacy inquiry at para. 33 of these reasons.
(4) The manner in which the observation or recording was done. Relevant considerations may include whether the observation or recording was fleeting or sustained, whether it was aided or enhanced by technology and, if so, what type of technology was used. The potential impact of evolving technologies — such as that used in the case at bar — on reasonable privacy expectations must be kept in mind.
(5) The subject matter or content of the observation or recording. Relevant considerations may include whether the observation or recording targeted a specific person or persons, what activity the person who was observed or recorded was engaged in at the relevant time, and whether the focus of the observation or recording was on an intimate part of the person's body.
(6) Any rules, regulations or policies that governed the observation or recording in question. However, formal rules, regulations or policies will not necessarily be determinative, and the weight they are to be accorded will vary with the context.
(7) The relationship between the person who was observed or recorded and the person who did the observing or recording. Relevant considerations may include whether the relationship was one of trust or authority and whether the observation or recording constituted a breach or abuse of the trust or authority.
(8) The purpose for which the observation or recording was done. I will explain why this may be a relevant consideration at paras. 31-32 of these reasons.
(9) The personal attributes of the person who was observed or recorded. Considerations such as whether the person was a child or a young person may be relevant in some contexts.
[30] I emphasize that the list of considerations that can reasonably inform the inquiry into whether a person who was observed or recorded had a reasonable expectation of privacy is not exhaustive. Nor will every consideration listed above be relevant in every case. For example, recordings made using body-worn camera technology or security camera footage will raise somewhat different considerations than those raised by the use of the pen camera at issue in the case at bar.
[31] I pause here to note that there is nothing incongruous about considering the purpose of observation or recording in determining whether it was done in breach of a reasonable expectation of privacy. This Court has recognized, in other contexts, that a person's reasonable expectation of privacy may depend, in part, on the purpose of the observation or recording: see R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, at para. 108; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 34.
[32] The fact that it is an element of the offence in s. 162(1)(c) that observation or recording be done for a sexual purpose does not make it inappropriate to consider the purpose of the observation or recording in assessing whether it was done in breach of a reasonable expectation of privacy, as a separate element of the offence. In some cases, observation or recording may not breach expectations of privacy despite having a sexual purpose. In other cases, observation or recording may be an obvious breach of privacy regardless of its purpose and it can ground a conviction under s. 162(1) if the other elements of the offence are made out.
[33] Similarly, although the surreptitiousness of the observation or recording is an element of the offence in s. 162(1), this does not mean that it can never be considered in assessing whether the person who was observed or recorded had a reasonable expectation of privacy. For example, the fact that a person would recoil if they knew they were being observed or recorded — or what we might call their "hypothetical" reaction — may be relevant to determining whether they had a reasonable expectation of privacy in the circumstances. Similarly, evidence of a person's actual reaction to learning that they had been observed or recorded may also be relevant to this inquiry.
[34] As I will now explain, the above interpretation of the requirement in s. 162(1) that a person who is observed or recorded be in "circumstances that give rise to a reasonable expectation of privacy" is the interpretation that best accords with the language, context and purpose of that provision.
(3) This Interpretation of the Expression "Circumstances That Give Rise to a Reasonable Expectation of Privacy" Best Accords With the Language, Context and Purpose of Section 162(1)
(a) Opening Words of Section 162(1)
[35] I will begin by considering the words chosen by Parliament to express the element of s. 162(1) with which we are concerned in this appeal and the "ordinary" or "natural" meaning that appears when these words are read in their immediate context: see R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 30.
[36] The concept of "privacy" defies easy definition, and I do not propose to offer a comprehensive definition here. However, in a general sense and as ordinarily used, the word "privacy" includes the concept of freedom from unwanted scrutiny, intrusion or attention. Section 162(1) is specifically concerned with visual privacy — that is, freedom from unwanted visual scrutiny. Read in its immediate context, the phrase "circumstances that give rise to a reasonable expectation of privacy" in s. 162(1) refers to circumstances in which a person would reasonably expect to be free from the type of visual intrusion that the offence of voyeurism involves.
[37] One question raised by the present appeal is whether a person can ever retain such an expectation when she knows she can be observed by others or when she is in a place from which she cannot exclude others — what may be described as a "public" place. In my view, on an ordinary understanding of the concept of privacy as freedom from unwanted scrutiny or intrusion, a person does not necessarily lose all reasonable expectations of privacy simply by being in a public place.
[38] In my view, a typical or ordinary understanding of the concept of privacy recognizes that a person may be in circumstances where she can expect to be the subject of certain types of observation or recording but not to be the subject of other types. An obvious example is that of a person who can be seen by others walking down the street outside her home. It goes without saying that being visible in this manner does not eliminate all of her reasonable expectations regarding visual privacy.
[39] Similarly, a woman changing in a communal women's change room at a public pool would expect to be observed incidentally in various states of undress by other users of the change room. However, there can be no debate that she would retain some expectation of privacy with respect to observation or recording in that space — for example, she could reasonably expect not to be the subject of video recording.
[40] One can think of other examples where a person would continue to expect some degree of privacy, as that concept is ordinarily understood, while knowing that she could be viewed or even recorded by others in a public place. For example, a person lying on a blanket in a public park would expect to be observed passing by others, but would not expect to be the subject of sustained, close-up recording.
[41] These examples illustrate that "privacy," as ordinarily understood, is not an all-or-nothing concept. Furthermore, being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording. Rather, these examples indicate that whether observation or recording would generally be regarded as an invasion of privacy depends on a variety of factors, which may include a person's location, the form of the alleged invasion of privacy, the nature of the observation or recording, the activity in which a person is engaged when observed or recorded and the part of a person's body that is the focus of the recording.
[42] The fact that a variety of factors may influence whether a person would expect not to be observed or recorded is also consistent with Parliament's choice to express the element of the offence in s. 162(1) with which we are concerned by reference to the "circumstances" that give rise to a reasonable expectation of privacy. Had Parliament intended to limit the types of circumstances that can be considered, it would have done so expressly — as it did, for example, in para. (a) of s. 162(1), which expressly limits the scope of that sub-provision by reference to the person's location.
[43] I recognize that expressing this element by reference to the circumstances in which a person is observed or recorded is also a way to make it clear that this element relates to privacy expectations that would reasonably arise from the context in which observation or recording takes place, not from the expectations of the particular individual who was observed or recorded. If the standard were purely subjective, a person who had no expectation of privacy — for example, someone who had consented to being recorded — could not be a victim of the offence. Rather, whether a person is in circumstances that give rise to a reasonable expectation of privacy must be assessed from the perspective of a reasonable person in the same circumstances.
(b) Statutory Context
[44] The immediate statutory context of the words "circumstances that give rise to a reasonable expectation of privacy" lends further support to the view that this element is not governed solely or primarily by a person's physical location and does not limit the commission of the offence to traditionally private spaces. The paragraphs (a) through (c) of s. 162(1) set out three different situations in which the surreptitious observation or recording of a person in circumstances giving rise to a reasonable expectation of privacy is prohibited:
(a) the person [who is observed or recorded] 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 [who is observed or recorded] is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or
(c) the observation or recording is done for a sexual purpose.
[45] Notably, para. (a) expressly circumscribes the scope of the prohibited observation or recording by reference to location — that is, it prohibits observation or recording in places where nudity or sexual activity may reasonably be expected. It would therefore be incongruous with para. (a) to read the requirement that the person who is observed or recorded be in circumstances that give rise to a reasonable expectation of privacy as also being governed by location.
[46] Furthermore, if the reference to "circumstances that give rise to a reasonable expectation of privacy" in s. 162(1) is understood as limiting the scope of the prohibited conduct to surreptitious observation or recording in traditionally "private" places, it is difficult to conceive of situations — other than observation or recording in the circumstances described in para. (a) — in which the element would ever be met. In other words, if location is the primary or governing consideration, this would render the circumstances element largely redundant when a person is in a "public" space, since a person in a "public" space, by definition, cannot exclude others from that space.
[47] An argument that can be made against this line of reasoning is that there are locations from which a person can exclude others but where nudity or sexual activity would not reasonably be expected — for example, a private office in a workplace — and that it is observation and recording in places like these that the circumstances element is aimed at (in the case of paras. (b) and (c)). The short answer to this argument is that interpreting the circumstances element as focused on location (i.e., whether or not a person could exclude others from the location) would make the element redundant in many if not all of the contexts in which paras. (b) and (c) would apply.
(c) Purpose and Object of Section 162(1)
[48] This understanding of when a reasonable expectation of privacy arises in this context also best accords with Parliament's object in enacting the offence in s. 162(1): to protect individuals' privacy and sexual integrity, particularly from new threats posed by the abuse of evolving technologies.
[49] Section 162(1) was introduced into the Criminal Code as part of Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, 1st Sess., 38th Parl., 2004-2005 (assented to July 20, 2005). The legislative process leading to this bill began with a 2002 consultation paper prepared by the federal Department of Justice, Voyeurism as a Criminal Offence: A Consultation Paper.
[50] The consultation paper explained that the harm that potential new voyeurism offences would address could be conceptualized in one of two ways: as "the breach of a right to privacy that citizens enjoy in a free and democratic society" or as the sexual exploitation of individuals: pp. 6-8. Sexual exploitation is not confined to private places. Thus, the fact that a major conceptualization of the harm at stake involved sexual exploitation indicates that Parliament intended the offence to extend to observation or recording in public spaces, at least in some circumstances.
[51] According to a summary of the responses the government received to the consultation paper, the majority of respondents were in favour of conceptualizing voyeurism as both a sexual and a privacy-based offence: Department of Justice, Voyeurism As A Criminal Offence: Summary of the Submissions, October 28, 2002 (online: http://www.justice.gc.ca/eng/cons/voy/final.html; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC10_1_eng.pdf), at p. 7. This response was reflected in the bill that was ultimately enacted.
[52] The fact that an important aspect of the purpose of s. 162(1) is to protect individuals, especially vulnerable individuals, from sexual exploitation militates against the narrow reading of the phrase "circumstances that give rise to a reasonable expectation of privacy" urged by Mr. Jarvis, and accepted by the majority of the Court of Appeal. As Professor Paton-Simpson has observed, technology has the potential to contravene normal expectations of privacy in both public and private places.
[53] I pause here to note that other aspects of the legislative history of s. 162(1) further support the interpretation of the expression "circumstances that give rise to a reasonable expectation of privacy" that I have set out above. For example, the 2002 consultation paper contemplated versions of the voyeurism offence that would have been limited to observation or recording in private or secluded places. Had Parliament intended to so limit the offence, it could have adopted one of these versions. Instead, Parliament chose to use the broader expression "circumstances that give rise to a reasonable expectation of privacy."
(d) Broader Legal Context
[54] The interpretation of a statutory provision may be informed by the broader legal context. Because Parliament chose to describe the element of the offence with which we are concerned using the expression "reasonable expectation of privacy", one aspect of the broader legal context is of particular relevance: the large body of jurisprudence that has grown up around the concept of "reasonable expectation of privacy" in the context of s. 8 of the Charter.
[55] The concept of "reasonable expectation of privacy" has played a central role in the jurisprudence on s. 8 of the Charter since this Court's earliest decisions interpreting that provision: see *Hunter v. Southam Inc.*, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145. Since that time, the concept has been extensively explored and developed in the s. 8 jurisprudence.
[56] A legislature is presumed to have a mastery of existing law: Sullivan, at p. 205. When a legislature uses a common law term or concept in legislation, that term or concept is presumed to retain its common law meaning: Sullivan, at p. 543. Therefore, Parliament must be understood as having chosen the words "reasonable expectation of privacy" in s. 162(1) purposefully and with the intention that the existing jurisprudence on this concept would inform the content and meaning of those words.
[57] Of course, the relevant differences between the context of s. 8 of the Charter and the context of the offence in s. 162(1) must be kept in mind. While one purpose of s. 162(1) of the Criminal Code is to protect individuals' privacy interests from intrusions by other individuals, the purpose of s. 8 of the Charter is to protect individuals from unreasonable searches and seizures by agents of the state. Given this difference, the jurisprudence on s. 8 of the Charter must be applied to the interpretation of s. 162(1) with care and only to the extent that it is helpful in the context of s. 162(1).
[58] However, the s. 8 jurisprudence recognizes that the inquiry into whether an individual has a reasonable expectation of privacy vis-à-vis the state with respect to a certain subject matter may be informed, in part, by considering the individual's privacy expectations vis-à-vis other individuals in relation to the same subject matter: see, e.g., *R. v. Tessling*, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 42; *R. v. Marakah*, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 20-21. In the circumstances of the case at bar, a person's reasonable expectation vis-à-vis her teacher (who is the person who did the recording) would seem to be particularly relevant to the determination of whether the recording violated a reasonable expectation of privacy.
[59] The s. 8 jurisprudence is instructive in interpreting s. 162(1) of the Criminal Code for another reason besides the fact that s. 162(1) uses the phrase "reasonable expectation of privacy". The express terms of s. 162(1), as well as its legislative history, demonstrate that this provision is concerned with protecting the same fundamental values of privacy and personal autonomy that are at the heart of s. 8 and the broader privacy jurisprudence. In particular, the s. 8 case law represents a rich body of judicial thought on the meaning of privacy in our society. Far from being unmoored from our ordinary perceptions of when privacy can be expected, judgments about privacy expectations in the s. 8 context are informed by our fundamental shared ideals about privacy as well as our everyday experiences.
[60] I therefore turn now to a number of principles established in the jurisprudence on s. 8 of the Charter, and the broader privacy jurisprudence, that I consider relevant to interpreting the meaning of "reasonable expectation of privacy" in s. 162(1) of the Criminal Code. The first of these principles is that privacy is not an "all-or-nothing" concept — that is, a person can retain a reasonable expectation of privacy even in circumstances where she does not expect complete privacy: see, e.g., *R. v. Tessling*, 2004 SCC 67, at paras. 22-23; *R. v. Cole*, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 46, 50.
[61] The second principle from the jurisprudence on s. 8 of the Charter and the broader privacy jurisprudence that is applicable in the s. 162(1) context is that privacy is not an "all-or-nothing" concept. In other words, simply because a person is in circumstances where she does not expect complete privacy does not mean she has no reasonable expectations of privacy at all. These expectations of privacy can be on a spectrum — that is, one may have a greater or lesser expectation of privacy depending on the circumstances.
[62] An example of this broader principle that is recognized in the jurisprudence is that the intrusion into our privacy that occurs when a person hears our words or observes us in passing is fundamentally different than the intrusion that occurs when the same person simultaneously makes a permanent recording of the same words or observation. This distinction is recognized in both the jurisprudence on s. 8 of the Charter: see R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30; R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36; and the jurisprudence on the voyeurism offence itself: R. v. Rudiger, 2011 BCSC 1397.
[63] Relatedly, the privacy jurisprudence recognizes the potential threat to privacy occasioned by new and evolving technologies more generally and the need to consider the capabilities of a technology in assessing whether reasonable expectations of privacy were breached by its use: see Wise, at pp. 533-34; *R. v. Cole*, 2012 SCC 53, at para. 46; *R. v. Spencer*, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 31.
[64] The next principle established by the jurisprudence on s. 8 of the Charter that is instructive in the case at bar is that the concept of privacy encompasses a number of related types of privacy interests. These include not only territorial privacy interests — "involving varying expectations of privacy in one's person, home or other spaces" — but also personal privacy interests and informational privacy interests: Tessling, at para. 23.
[65] As this Court has recognized, our society places a high value on personal privacy — that is, privacy with respect to our bodies, including visual access to our bodies: see Tessling, at para. 21; *R. v. M. (M.R.)*, 1998 CanLII 770 (SCC), [1998] 3 S.C.R. 393, at para. 32; *R. v. Golden*, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 98.
[66] In considering the concept of informational privacy, this Court has accepted that individuals have a valid claim "'to determine for themselves when, how, and to what extent information about them is communicated to others'": Tessling, at para. 23, quoting A. F. Westin, Privacy and Freedom (1970), at p. 7. Applied to visual privacy, this principle recognizes that individuals generally have an interest in being able to control how they are visually represented in the world — in particular, in their ability to control who is able to take and use visual images of their bodies.
[67] Section 162(1)(a) implicates territorial privacy, as it is concerned with protecting privacy in particular places. More fundamentally, however, s. 162(1) as a whole is concerned with protecting personal and informational privacy by prohibiting the observation and visual recording of persons. An individual's interests in personal and informational privacy are not limited to the home or to "private" spaces.
[68] This leads me to an important point about the reasonable expectation of privacy inquiry in the contexts of s. 8 of the Charter and s. 162(1) of the Criminal Code. The s. 8 jurisprudence makes it clear that "reasonable expectation of privacy" is a normative rather than a descriptive standard: see, e.g., *Tessling*, 2004 SCC 67, at para. 42; Marakah, at para. 10. As a result, although the relevant question is whether a reasonable person in the same circumstances would have expected privacy, it is not sufficient to note that individuals in practice generally accept a certain level of intrusion; rather, the question is whether such an expectation is reasonable in light of the fundamental values that our legal system seeks to protect.
[69] That being said, determining whether a reasonable expectation of privacy arises in a particular set of circumstances does not involve an ad hoc balancing of the value of the accused's interest in observation or recording against the value of the observed or recorded person's interest in being free from observation or recording, nor does it involve a consideration of what types of observation or recording the accused could legitimately engage in in the circumstances.
[70] Parliament has already weighed society's interests in allowing individuals to observe and record others and in protecting individuals from surreptitious observation and recording. In the result, Parliament has enacted s. 162(1), which prohibits surreptitious observation and recording that breaches a reasonable expectation of privacy and that is done in one of the three circumstances described in paras. (a) through (c). The role of the courts is to give content to this legislative judgment, not to second-guess it.
B. Were the Students Recorded by Mr. Jarvis in "Circumstances That Give Rise to a Reasonable Expectation of Privacy"?
[71] As I have explained above, determining whether a person who was observed or recorded was in circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code requires determining whether the person was in circumstances in which she would have reasonably expected not to be the subject of the type of observation or recording that in fact occurred. I will now apply this understanding of the element of the offence to the facts of the case at bar.
[72] The trial judge in the case at bar was satisfied beyond a reasonable doubt that Mr. Jarvis had recorded students who were in circumstances that give rise to a reasonable expectation of privacy. In my view, based on the understanding of this element of the offence that I have set out above, no other finding is available on the record. When the entire context is considered, there can be no doubt that the students' circumstances give rise to a reasonable expectation that they would not be recorded in the manner they were. The considerations that lead to this conclusion include the location where the videos were recorded; the fact that the impugned conduct consisted of recording rather than mere observation; the manner in which the videos were recorded, including the fact that the students were not aware they were being recorded; the content of the videos, particularly their focus on intimate parts of the students' bodies; the existence of a school board policy prohibiting such recording; the fact that the videos were recorded in breach of a relationship of trust between Mr. Jarvis and the students; Mr. Jarvis' purpose in making the recordings; and the fact that the persons who were recorded were young persons.
[73] I begin by considering the location where the videos were recorded. Mr. Jarvis made the recordings while the students were in various locations in and around their high school, including classrooms, hallways, the cafeteria and immediately outside the school. There is no dispute that students' reasonable expectations of privacy while they are in these locations are lower than they would be in, for example, their homes. However, as I have explained above, being in a semi-public place does not automatically negate all reasonable expectations of privacy. The locations in which the recordings were made, considered alone, neither support nor defeat the finding of a reasonable expectation of privacy in the case at bar.
[74] I will now consider the significance to the reasonable expectation of privacy inquiry of the fact that the impugned conduct in the case at bar consisted of recording rather than mere observation. Because the impugned conduct consisted of recording, it cannot be determinative of the reasonable expectation of privacy inquiry that the students could expect to be observed while in the school's common areas. The question is whether they could have expected to be recorded in those areas in the manner in which Mr. Jarvis recorded them. As I will explain, they could not.
[75] The manner in which the videos were recorded — using hidden camera technology that allowed for sustained recording at close range without the subject being aware of it — is also a relevant factor in the case at bar. It undermines Mr. Jarvis' argument that the students could not have had a reasonable expectation of privacy from video recording while in the school's common areas. In this regard, I note that the impugned conduct was not recording in the ordinary sense of what may be incidentally or openly recorded in a semi-public place. Mr. Jarvis' recordings were conducted secretly, without the students' knowledge or consent.
[76] The security cameras at the school were mounted to the walls near the ceiling inside the building and also to the outside of the building. They did not record audio; the direction they pointed could not be manipulated by teachers; teachers could not access or copy the recorded footage for their personal use; and students would have been aware of their presence. A student at the school would reasonably have expected to be recorded by the school's security cameras for the purpose of ensuring the safety and security of the school and its students and staff. This is a fundamentally different type of recording than the covert recording by Mr. Jarvis.
[77] A closely related consideration, the content of the recordings, weighs heavily in favour of my conclusion that Mr. Jarvis made the recordings in breach of reasonable expectations of privacy. As noted above, the existence of a reasonable expectation of privacy in the context of s. 8 of the Charter may depend, in part, on the subject matter of the information that is sought by the state: Tessling, at para. 31. Similarly, in the s. 162(1) context, whether a person was in circumstances that give rise to a reasonable expectation of privacy may depend, in part, on the focus and content of the recording.
[78] For example, in Rudiger, Voith J. considered the content of the video recording at issue in that case relevant to his determination that the recording was made in breach of reasonable expectations of privacy. In that case, the accused had hidden in a van and used a camera to record children playing at a public swimming pool. The children were in swimwear. Voith J. found that the children had a reasonable expectation of privacy based, in part, on the fact that the recording was focused on them in a "targeted and sustained" manner in which they would not have reasonably anticipated being filmed.
[79] The content of the recordings is a telling aspect of the contextual inquiry in the case at bar as well. In my view, the content of the videos recorded by Mr. Jarvis leaves no doubt that they were recorded in breach of the privacy expectations the students recorded would reasonably have had. There are three aspects of the content of the videos that are of particular significance.
[80] First, it is significant that particular students were targeted for recording. Some individual students and small groups of students were the subject of multiple videos and, in one case, Mr. Jarvis recorded the same student in multiple locations around the school. This was not a case of Mr. Jarvis simply pointing his pen in various directions at various times.
[81] Second, and on a related point, it is also significant that, since they were recorded at close range, the videos show students in close-up. Because of this, and also because they include students' faces in some frames, the videos make the students easily identifiable and reveal more information about particular students than would ordinarily be accessible to an observer.
[82] Finally, an aspect of the content of the videos that is particularly significant to my conclusion that Mr. Jarvis breached the students' reasonable expectations of privacy in recording them is that the videos focus on the students' bodies, particularly their breasts. While our society places importance on the principle that people should not be judged by the way their bodies look, it is also a societal norm that a woman's breasts are intimate parts of her body. The fact that the videos predominantly focus on the clothed breasts of the students recorded is an aspect of the content of the videos that strongly supports a finding that the students were in circumstances giving rise to a reasonable expectation of privacy when they were recorded.
[83] It is also relevant to the students' reasonable expectations of privacy that there was a formal school board policy in effect at the time Mr. Jarvis made the video recordings at issue that "prohibited [his] conduct in making the recordings in the manner that he did": Agreed Statement of Facts, para. 7. This policy is relevant because it establishes that, in the school context, it was explicitly the norm that covert video recording of the type Mr. Jarvis engaged in was not to be done.
[84] This brings me to another relevant circumstance surrounding the making of the recordings at issue in the case at bar: the fact that Mr. Jarvis was a teacher at the school and that his surreptitious recording betrayed the trust invested in him by his students. Teachers are presumed to be in a relationship of trust and authority with their students: see R. v. M. (M.R.), at para. 33; R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171, at para. 33. The relationship of trust between teachers and students, which our society has come to regard as fundamental to the educational environment, would be undermined if students could not have a reasonable expectation that their bodies would not be surreptitiously video recorded by their teachers for a sexual purpose.
[85] The purpose for which Mr. Jarvis made the recordings at issue is thus also a relevant circumstance in the case at bar. Although it has been recognized that the need to ensure a safe and orderly school environment reduces students' reasonable expectations of privacy as against searches of their belongings and persons (see *R. v. M. (M.R.)*, 1998 CanLII 770 (SCC), at para. 33), the same cannot be said of recordings made by teachers of the bodies of their students for a sexual purpose.
[86] The fact that all of the students were young persons, and that some of them were minors, is a circumstance that further supports the finding of a reasonable expectation of privacy. As has been acknowledged by this Court, the values that underlie privacy "apply equally if not more strongly in the context of children": *A.B. v. Bragg Communications Inc.*, 2012 SCC 46, [2012] 2 S.C.R. 567, at para. 18.
[87] Reasonable adults are particularly solicitous of the privacy interests of children and young persons in relation to observation and especially visual recording. One reason for this is that reasonable adults recognize that children and young persons are often not in a position to protect their own interests as effectively as adults can. Another reason is that reasonable adults value the ability of children and young persons to develop and explore their personal and social identities in a context where they are protected from harmful intrusions on their privacy. This value is reflected in the Youth Criminal Justice Act, S.C. 2002, c. 1, which contains provisions designed to limit the degree to which young persons are observed and their activities are made public. It is also reflected in the broad prohibition in the Criminal Code, at s. 486.4, on the publication of information that could identify persons under the age of 18 in criminal proceedings.
[88] These considerations are applicable to our assessment of the students' expectations of privacy in the case at bar. The fact that all of the students were young persons means that they would have reasonably expected the adults around them to be particularly cautious about not intruding on their privacy, especially with respect to the recording of images of intimate parts of their bodies.
[89] In today's society, the ubiquity of visual recording technology and its use for a variety of purposes mean that individuals reasonably expect that they may be incidentally photographed or video recorded in many situations in day-to-day life. For example, individuals expect that they will be captured in the background of photographs taken by other individuals in public places, and they can expect to be recorded by security cameras in public buildings and on streets. An expectation that one would never be recorded in any semi-public space would be unreasonable.
[90] That being said, individuals going about their day-to-day activities — whether attending school, going to work, taking public transit or engaging in leisure pursuits — also reasonably expect not to be the subject of targeted recording focused on their intimate body parts (whether clothed or unclothed). This expectation is, in my view, one that a reasonable person in Canadian society would share. Reasonable people would regard the surreptitious recording of their body — or of the bodies of young persons in their care or of others they are entrusted with — in the manner carried out by Mr. Jarvis as an obvious invasion of privacy.
V. Conclusion and Disposition
[91] To determine whether a person who is observed or recorded is in circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1), a court must ask whether the person is in circumstances in which she would reasonably expect not to be the subject of the type of observation or recording that in fact occurred. Applying this test, there can be no doubt in the case at bar that the students recorded by Mr. Jarvis were in circumstances that give rise to a reasonable expectation of privacy, for the reasons I have given above.
[92] It is not in issue in this Court that the Crown has established the other elements of the offence with which Mr. Jarvis was charged. Accordingly, I would allow the appeal, enter a conviction, and remit the matter for sentencing.
Concurring Reasons
The reasons of Côté, Brown and Rowe JJ. were delivered by
Rowe J. —
[93] I have had the benefit of reading the Chief Justice's reasons; I rely on his summary of the facts and judicial history of the case, and I concur in the result. However, I would interpret differently "reasonable expectation of privacy" as it appears in s. 162(1) of the Criminal Code, and I write separately to explain why.
I. Charter Jurisprudence Should Not Inform the Interpretation of Section 162(1)
A. Constitutional and Statutory Construction Call for Different Interpretative Principles
[94] Different interpretive principles apply to the interpretation of constitutional and statutory provisions. It has been long held by this Court that a purposive approach should be applied when interpreting the normative language of the Charter: *R. v. Big M Drug Mart Ltd.*, 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at pp. 344-45. By contrast, when interpreting ordinary legislation, the court must seek the intent of Parliament and the ordinary meaning of the words. In both cases, the text, context and purpose of the provision are relevant, but the nature of the exercise differs.
[95] The Criminal Code is a statute, not a constitutional document. While there is considerable interplay in the jurisprudence between the Criminal Code and the Charter, the analysis used to interpret each must be kept distinct. It would be a fundamental error to give the wording in s. 162(1) the same expansive interpretation one would apply to the Charter, as doing so would blur the boundaries between the criminal law and the constitutional standards by which that law is judged.
[96] This is reinforced by reference to the original meaning rule of statutory interpretation, according to which the words of an ordinary statute are to be read in the way they were understood at the time the statute was enacted: "'The words of a statute must be construed as they would have been the day after the statute was passed'": R. v. Chartrand, 1994 CanLII 53 (SCC), [1994] 2 S.C.R. 864, at pp. 882-83. This leads to the conclusion that the meaning of words used in s. 162(1) would have been fixed when that provision was enacted in 2005.
[97] Certainty and stability are of particular importance when defining the scope of criminal offences. The fair notice principle articulated in *Frey v. Fedoruk*, 1950 CanLII 24 (SCC), [1950] S.C.R. 517 ― itself a "peeping Tom" case ― that "declaration[s of criminal conduct] should be made by Parliament" establishes that the outer limits of an offence must be clearly defined. This Court reaffirmed this concern in *R. v. D.L.W.*, 2016 SCC 22, [2016] 1 S.C.R. 402:
Stability and certainty are particularly important values in the criminal law and significant changes to it must be clearly intended.
. . . the courts have refrained from developing the common law meanings of legal terms used in the Code so as to extend the scope of criminal liability. Courts will only conclude that a new crime has been created if the words used to do so are certain and definitive. [Citations omitted; paras. 54 and 56]
[98] I agree with the respondent that to interpret "reasonable expectation of privacy" in s. 162(1) by reference to the s. 8 jurisprudence would put the judiciary in the position of creating new common law offences, despite their abolition in the enactment of s. 9(a) of the Criminal Code: R.F, at para. 42. Because s. 8 jurisprudence continues to evolve, applying it to s. 162(1) would effectively mean that the outer limits of the criminal offence of voyeurism would shift as the s. 8 jurisprudence evolves.
B. The Purpose and Function of Section 8 of the *Charter* and Section 162(1) of the *Criminal Code* Are Fundamentally at Odds
[99] While s. 162(1) of the Criminal Code and s. 8 of the Charter are both in play in the criminal law context, they concern different interests. Section 8 of the Charter limits the powers of the state vis-à-vis its citizens. It limits the investigative powers of the state, and maintains a check on the power of the state. The power imbalance of police as agents of the state vis-à-vis a citizen is at the heart of the preoccupation under s. 8.
[100] On occasions where the term has been applied in a legal context other than s. 8, it has also been described in terms of the individual's rights versus the interests of the state. For example, in describing a reasonable expectation of privacy in the context of the Access to Information Act, the Dagg majority described it as a right that stands in opposition to transparency and accountability of government: Dagg, at p. 426.
[101] By contrast, in the context of the voyeurism offence, "reasonable expectation of privacy" defines one of the external circumstances that must be proven by the Crown beyond a reasonable doubt in order to secure a conviction. To obtain a guilty verdict, the prosecution must prove that the accused committed the offence against a person in circumstances where they had a "reasonable expectation of privacy". This is the element that represents the harm contemplated by the offence — it is the harm the offence is designed to prevent.
[102] Further, the scope of the circumstances giving rise to a "reasonable expectation of privacy" under s. 8 of the Charter is necessarily different from the scope under s. 162(1) of the Criminal Code. The interests protected by s. 8 of the Charter include personal privacy, territorial privacy and informational privacy, whereas the reasonable expectation of privacy under s. 162(1) relates only to the protection of one's physical image.
[103] In this I differ from the Chief Justice, who states in para. 67 that s. 162(1) implicates territorial privacy. Respectfully, I cannot agree. The interest of privacy that one has in their own person while in a particular location is different from territorial privacy in the context of s. 8. The concept of territorial privacy centres on the right to exclude others from a space and the attendant privacy interests: Tessling, at para. 22. This concept is not the appropriate lens to be applied in the context of a person's reasonable expectation with respect to their own image.
C. *Charter* Values Are a Legitimate Interpretive Aid Only in Cases of Ambiguity
[104] The Chief Justice looks to the jurisprudence relating to s. 8 of the Charter as part of the "broader legal context": para. 54. From this jurisprudence he identifies, at para. 59, "fundamental shared ideals": ". . .the s. 8 case law represents a rich body of judicial thought on the meaning of privacy in our society. Far from being unmoored from our ordinary perceptions of when privacy can be expected, judgments about privacy expectations in the s. 8 context are informed by our fundamental shared ideals about privacy as well as our everyday experiences." This approach treats the s. 8 jurisprudence as expressing Charter values that can be used as an aid in interpreting s. 162(1).
[105] What does it mean, then, for a provision to have ambiguity? This Court has held that "genuine" ambiguity only arises where there are "two or more plausible readings, each equally in accordance with the intentions of the statute": *CanadianOxy Chemicals Ltd. v. Canada (Attorney General)*, 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743, at para. 14. The Court stated in *Bell ExpressVu Limited Partnership v. Rex*, 2002 SCC 42, [2002] 2 S.C.R. 559:
. . . ambiguity cannot reside in the mere fact that several courts ― or, for that matter, several doctrinal writers ― have come to differing conclusions on the interpretation of a given provision. Just as it would be improper for one to engage in a preliminary tallying of the number of decisions supporting one interpretation over another, so too would it be improper to find ambiguity on the basis of that disagreement.
(Bell ExpressVu v. Rex, at para. 30)
[106] Applying the rule, s. 162(1) is not legally ambiguous. At most, one can say that there has been disagreement as to what circumstances ought to be considered in deciding whether there was a reasonable expectation of privacy. This is different from there being "two . . . plausible readings, each equally in accordance with the intentions of the statute." There is no genuine ambiguity in the text of s. 162(1). As such, it is not appropriate to use Charter values to resolve the meaning of the text.
II. "Reasonable Expectation of Privacy" in the Context of Voyeurism
[107] Drawing on the s. 8 jurisprudence, the Chief Justice's approach to identifying circumstances that give rise to a reasonable expectation of privacy requires consideration of "the entire context in which the observation or recording took place": para. 5. One cannot disagree with his central premise, which is that context matters. The question is: what contextual factors are relevant, and why?
[108] Of the nine non-exhaustive factors that he has identified at para. 29, four are considerations required by the wording of the provision: the location of the person being observed or recorded, the subject matter of the observation or recording, the purpose for which the observation or recording was done, and the personal attributes of the subject. Consideration of these four factors is necessary for the proper interpretation of s. 162(1).
[109] The five other factors set out by the Chief Justice as being relevant to a reasonable expectation of privacy are: whether the conduct consisted of an observation or recording; the manner in which the observation or recording was made (including whether it was fleeting or sustained; whether it was aided by technology); awareness of or consent to the observation or recording; any rules, regulations or policies governing the observation or recording; and the relationship between the parties. These factors are closely related to the elements of the offence as set out in s. 162(1). They relate to the accused's conduct rather than the circumstances of the person observed or recorded.
[110] A relationship of trust between the parties should not be a factor in finding a person guilty of voyeurism. While Parliament has expressly included the consideration of a relationship of trust in the language of other criminal offences, such as sexual exploitation (ss. 153 and 153.1), there is no reference to such a relationship in s. 162(1). Including this as a factor in defining the scope of the offence would result in the offence having a different scope depending on who is doing the observing or recording. When interpreting a provision that defines the scope of what must be proved as a circumstance of the offence (that the person who was the object of the voyeurism was in circumstances giving rise to a reasonable expectation of privacy), factors that shift attention to the relationship between the perpetrator and the victim, and to whether the accused's conduct was consistent with rules or policies, are factors that go beyond the circumstances of the victim.
[111] The protection of children was a priority in adopting Bill C-2, instructively entitled An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, 1st Sess., 38th Parl., 2004 (assented to July 20, 2005). Accordingly, s. 162(1) should be interpreted in a manner consistent with that objective. I agree with the Chief Justice that the personal attributes of the person observed or recorded — including whether that person is a child or a young person — may be a relevant consideration in assessing whether there is a reasonable expectation of privacy. As Parliament clearly intended for s. 162(1) to protect children, this factor must be considered.
[112] Again, with respect, I would not adopt such a multi-factored test to decide whether there is a reasonable expectation of privacy in the context of the voyeurism offence. Rather, I would propose the following interpretation of that component of the offence.
A. The Purpose and Object of Section 162(1)
[113] I agree with the Chief Justice as to the purpose and object of s. 162(1): para. 48. The broad aim of criminal law is to prevent harm to society: W. R. LaFave and A. W. Scott, Substantive Criminal Law (2nd ed. 1986), vol. 1, at p. 17; A. W. Mewett and M. Manning, Mewett & Manning on Criminal Law (2nd ed. 1985), at p. 4.
[114] The development of the voyeurism offence addressed limitations in the criminal law. Previously, the offences that were relied on to deal with what has been historically referred to as "peeping Tom" behaviour were offences interfering with property (trespassing at night, s. 177; mischief, s. 430) and a public morals offence (being nude in a public place, s. 174), all of which were ill-suited to the task.
[115] First, the trespassing and mischief offences require interference with property or its lawful enjoyment. Therefore, they do not adequately respond to the use of modern technology by voyeurs to spy surreptitiously on people from afar. Parliament's concern with the use of technology to observe and record was made explicit in the parliamentary debates:
The development of new technologies has changed the situation [of surreptitious observation and recording] considerably. Nowadays, it is possible to obtain miniature cameras at a relatively reasonable cost. It is easier to be a voyeur from a distance using such cameras, and to do so in locations that are not accessible to the voyeur.
(House of Commons Debates, vol. 138, No. 46, 2nd Sess., 37th Parl., January 27, 2003 (not given Royal Assent), at p. 2692)
The mischief is the ability to observe or create recordings undetected by the subject, in public as well as in private, by effectively placing the voyeur in close proximity or at invasive angles of observation to the subject.
[116] The potential for the use of technology to infringe another's privacy is great. As Professor Paton-Simpson remarked:
By transcending the limits of sensory perception, technology has almost limitless potential to contravene normal expectations of privacy in both public and private places. For example, in the ordinary course of things, a person expects to be observed only from certain angles and distances and does not have to worry about people watching them from afar or observing parts of their body that would not normally be visible.
(E. Paton-Simpson, "Privacy and the Reasonable Paranoid: The Protection of Privacy in Public Places" (2000), 50 U.T.L.J. 305, at p. 330)
An insidious characteristic of modern technology is that it allows a viewer to observe from a position where they could not, but for the technology. For example, in *R. v. Rudiger*, 2011 BCSC 1397, 244 C.R.R. (2d) 69, Voith J. held that children playing in swimwear in a park retained a reasonable expectation of privacy against a voyeur who used technology to observe and record their bodies from a hidden location.
[117] The second deficiency with the use of the trespassing at night and mischief offences is that doing so mischaracterizes the wrong targeted by the offence of voyeurism. Trespassing at night and mischief are offences against property rights. In the 2002 consultation paper Voyeurism as a Criminal Offence: A Consultation Paper (the "consultation paper"), the Department of Justice acknowledged the mischaracterization that resulted from using those offences to address voyeurism: the consultation paper noted that the privacy and sexual integrity harms of voyeurism were not recognized by those offences.
[118] The offences created by ss. 162(1) and 162.1(1) are the first in the Criminal Code to include a complainant's reasonable expectation of privacy as an element of the offence. As such, the phrase must be interpreted with due consideration given to its function within the offence itself and with an eye to the overall scheme.
B. Placing Section 162(1) in the Sexual Offences Scheme
[119] The provision in question ought to be situated in the overall statutory scheme so as to ensure that the scheme functions consistently and harmoniously as a whole: "the objective is to interpret statutory provisions to harmonize the components of legislation inasmuch as is possible, in order to render the whole consistent, harmonious, and coherent": Sullivan, at p. 356. As stated in R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at pp. 356-57:
It is presumed that the provisions of legislation are meant to work together, both logically and teleologically, as parts of a functioning whole. The parts are presumed to fit together logically to form a rational, internally consistent framework; and because the framework has a purpose, the parts are presumed to work together to advance that purpose. Individual provisions are therefore read, not in isolation, but in light of the rest of the Act.
[120] As a principle of statutory interpretation, consideration of the legislative scheme has been employed by this Court in the interpretation of the Criminal Code. For example, regarding the interpretation of the offence of child abduction in Chartrand, Justice L'Heureux-Dubé wrote for a unanimous Court:
In this examination of the purpose of s. 281, it is necessary to look at the whole scheme designed by Parliament to deal with such related offences as kidnapping, hostage taking and abduction, more precisely, ss. 279 to 286 of the Code. Those sections deal with the whole range of related offences.
Following an examination of the related offences, the Court found the purpose of the child abduction provision to be "to secure the right and ability of parents (guardians, etc.) to exercise control over their children (those children for whom they act as guardians, etc.) for the protection of those children" (p. 884).
[121] Similarly, this Court has relied on the grouping of provisions to assist in interpretation: see, e.g., *R. v. Blais*, 2003 SCC 44, [2003] 2 S.C.R. 236. As Professor Sullivan notes, "[w]hen provisions are grouped together under a heading it is presumed that they are related to one another in some way, and the heading or title they share gives context to each provision and may assist in its interpretation": Sullivan, at p. 351.
[122] In this case, one should look to the scheme for sexual offences as a whole so as to inform the interpretation of s. 162(1). Sexual offences are designed to protect the personal autonomy and sexual integrity of the individual. In the introduction to his treatise on sexual offences in Canada, Professor Stewart describes the interests at stake in sexual offences as follows: "Sexual offences are concerned with . . . sexual integrity, which may be understood as the control of access to one's sexual parts and functions, including the related processes of observation and representation": H. C. Stewart, Sexual Offences in Canadian Law (2004) (loose-leaf updated to October 2018), at p. 1-2.
[123] I pause to note briefly that while the trespassing at night and mischief offences could be considered related, as discussed above, the use of these offences to address criminally voyeuristic behaviour was an incidental application of the criminal law. Section 162(1) is properly categorized as a sexual offence. It appears in Part V of the Criminal Code, entitled "Sexual Offences, Public Morals and Disorderly Conduct".
[124] There is extensive jurisprudence from this Court that defines sexual offences in terms of violation of one's autonomy and integrity. Sexual assault is an assault "committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated": *R. v. Chase*, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, at p. 302. The court looks to whether the conduct "viewed objectively" is sexual in nature such that it "would be viewed by the reasonable observer as sexual": Chase, at p. 302; see also *R. v. Bernard*, 1988 CanLII 22 (SCC), [1988] 2 S.C.R. 833. While intent can be relevant, what matters objectively is the sexual nature of the conduct: Chase, at p. 302; see also R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909; R. v. V. (K.B.), 1993 CanLII 109 (SCC), [1993] 2 S.C.R. 857; R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333.
[125] Describing the interests that the criminal law seeks to protect with respect to sexual assault, this Court stated in Ewanchuk that "[t]he law must afford women and men alike the peace of mind of knowing that their bodily integrity and autonomy in deciding when and whether to participate in sexual activity will be respected": *R. v. Ewanchuk*, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 66; see also *R. v. Hutchinson*, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 53-54.
[126] The child pornography jurisprudence provides additional guidance on the interests underlying the sexual offences scheme as a whole. Chief Justice McLachlin held that child pornography "denies children their autonomy and dignity", and that the "violation of dignity may stay with the child as long as the child lives": *R. v. Sharpe*, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 168.
[127] The interests protected under s. 162(1) accord with those described in Ewanchuk, Hutchinson, and Sharpe. They represent a shift in the conception of sexual offences away from sexual propriety and towards a focus on sexual integrity. As noted by Professor Craig, "[t]his shift from focusing on 'sexual propriety' to sexual integrity and autonomy has been a significant development in sexual offences law": E. Craig, Troubling Sex: Towards a Legal Theory of Sexual Integrity (2012), at p. 7; see R. Gavison, "Privacy and the Limits of the Law" (1980), 89 Yale L.J. 421, at p. 422; R. Gavison, "Feminism and the Public/Private Distinction" (1992), 45 Stan. L. Rev. 1, at pp. 23-24.
[128] "Privacy" defies a singular definition. It is a protean concept given content from the circumstances to which it is applied. But the privacy interest engaged by s. 162(1) is not so amorphous as to defy sufficient certainty and stability to meet the requirements of the criminal law. The phrase is interpreted here in relation to the other elements of the offence in which it appears, and in relation to the broader legislative scheme in which s. 162(1) is found.
III. Circumstances that Give Rise to a Reasonable Expectation of Privacy in One's Image
[129] With respect to the scope of the privacy interest engaged by s. 162(1), I agree with the Chief Justice that the wording of the provision supports the view that a reasonable expectation of privacy does not turn solely on the location of the person being observed or recorded. The explicit reference in the provision to "circumstances that give rise to a reasonable expectation of privacy" contemplates that these circumstances extend beyond location.
[130] Of course, location can be relevant when determining whether a reasonable expectation of privacy exists. Privacy's roots are embedded in the same soil as the sanctity of the home and the protection of one's property. As noted by Justice La Forest, "[t]he sanctity of the home is deeply rooted in the historical development of the common law. The maxim 'Every man's house is his castle' reflects the law's great concern for the inviolability of a man's home": R. v. Landry, 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145, at p. 165; see also Semayne's Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194.
[131] The expectation of privacy is highest in places where one can exclude others. When one is in public, one's expectation of privacy is attenuated. The development of technology has extended the privacy interest from the territorial (the sanctity of the home), to include the informational (the digital realm). In the context of s. 162(1), privacy is connected with personal autonomy and sexual integrity. The place where an individual is located is one, but not the only, factor in determining whether their privacy interest has been violated.
[132] Whether a person has a reasonable expectation of privacy is a normative question. I share the view set out in the dissenting opinion of the Court of Appeal in this case that finding that a person has a reasonable expectation of privacy in the relevant circumstances "is to conclude that his or her privacy interests ought to be protected in the circumstances, not merely that the person has some subjective expectation of privacy that turns out to be reasonable": 2017 ONCA 778, at para. 149.
[133] If both the following two related questions are answered in the affirmative, then an observation or recording occurred in circumstances that gave rise to a reasonable expectation of privacy under s. 162(1):
(1) Did the surreptitious observation or recording diminish the subject's ability to maintain control over their image?
(2) And if so, did this type of observation or recording infringe the sexual integrity of the subject?
In brief, an infringement of one's privacy interest under s. 162(1) can only be sustained if that individual is recorded or observed in a way that both causes them to lose control over their image; and also infringes their sexual integrity. This conjunctive test accords with what Parliament sought to protect by creating the offence.
A. Did the Surreptitious Observation or Recording Diminish the Subject's Ability to Maintain Control Over Their Image?
[134] What is private can be determined with regard to two related concepts: exclusivity and control. By virtue of one's ability to exclude others and control access to one's personal information, that information is protected from unwanted interference and is therefore private. Alan Westin defined informational privacy as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others": A.F. Westin, Privacy and Freedom (1970), at p. 7; see Tessling, at para. 23.
[135] The ability to maintain control over what personal visual information is shared, and with whom, is a facet of privacy linked to personal autonomy. Professor Parker has described privacy as "control over when and by whom the various parts of us can be sensed by others": R. B. Parker, "A Definition of Privacy" (1974), 27 Rutgers L. Rev. 275, at p. 281. This extends to the control one has over one's own image.
[136] A common feature in all the foregoing is the idea that privacy is the ability to control what is known or observed about oneself. An infringement of privacy occurs when that which is unknown/unobserved becomes known/observed without the person having put this information forward. These perspectives on privacy are consistent in their treatment of privacy as control over information about oneself, including one's image.
[137] While a person would not have a reasonable expectation of privacy in circumstances where they can be observed in passing or at a respectful distance (for example, passing on a sidewalk or conversing in a hallway), they may well have a reasonable expectation that their privacy will not be infringed by an observation or recording that captures intimate aspects of their appearance (for example, close-up images of their breasts) in a way that they could not reasonably have controlled or anticipated.
[138] The majority of the Court of Appeal reasoned that in order to give meaning to each word in the provision, the reasonable expectation of privacy must add something to the offence beyond that required by the surreptitiousness element: "[i]f the fact that [a person is] being surreptitiously recorded (using whatever means) in a public place is, by itself, sufficient to establish a reasonable expectation of privacy, then the reasonable expectation of privacy requirement is merged with the surreptitiousness requirement and becomes redundant": 2017 ONCA 778, at para. 83. Accordingly, the Court of Appeal held that location must be a distinguishing factor.
[139] For the reasons I have noted above, the reasonable expectation of privacy element should not be rendered redundant when considering observation or recording in a public place. I agree with the appellant Crown that while the surreptitiousness of the recording may signal circumstances that give rise to a reasonable expectation of privacy, the two elements remain distinct.
[140] As raised by the appellant, the surreptitiousness of the observation or recording improperly removes the individual's ability to maintain control over how they are observed: A.F, at para. 8. In addition, while the voyeurism offence targets both observation and recordings, because of its permanence, a recording compounds the denial of the subject's autonomy by giving the voyeur repeated access to the observations.
B. Did This Type of Observation or Recording Infringe the Sexual Integrity of the Subject?
[141] In order to find that a person was in circumstances that gave rise to a reasonable expectation of privacy for the purposes of s. 162(1), the observation or recording must have infringed the sexual integrity of the subject. I agree with the majority of the Court of Appeal for Ontario that it was an error for the trial judge to characterize the conduct underlying the charge as the recording of students engaging in "ordinary school-related activities."
[142] This Court stated in Chase that a sexual assault is an assault "committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated": p. 302. A similar approach should be adopted when assessing whether the impugned observation or recording infringes the complainant's sexual integrity.
[143] Viewing the infringement of sexual integrity under the test set out in Chase ensures that the "reasonable expectation of privacy" analysis is not conflated with the sexual purpose inquiry under s. 162(1)(c). It is important to keep these inquiries distinct. One can imagine a surreptitious observation or recording that would be objectively sexual in nature (and thus would infringe the sexual integrity of the subject), and yet would not be done for a sexual purpose (according to the subjective state of mind of the accused). Such a recording could ground a conviction under s. 162(1)(c) only if the sexual purpose element could be proved. One can also imagine a surreptitious observation or recording that would be done for a sexual purpose but that would not be objectively sexual in nature (and would thus not infringe the sexual integrity of the subject). However, such a recording would fail to meet the "reasonable expectation of privacy" element.
[144] By contrast, when observations or recordings are done in public and the subject is neither nude, nor exposing intimate body parts, nor engaged in sexual activity, Parliament limited criminal conduct to circumstances where the observations or recordings are for a sexual purpose under para. (c). The relevance of the sexual nature of the conduct is heightened by this limitation.
[145] Adapted to the context of voyeurism, the question is properly framed as follows: is the subject of the observation or recording reasonably perceived as intended to cause sexual stimulation in the observer? As pointed out by the majority of the Court of Appeal, an interpretation of sexual purpose that includes sexual gratification is consistent with the interpretation of the same phrase in other sections of the Criminal Code: 2017 ONCA 778, at para. 96.
IV. Application
[146] The students had a reasonable expectation of privacy regarding how their bodies would be observed in the classrooms and hallways of their school. The visual information ― the proximity and angles of how the students' bodies were observed ― was subject to the students' limitation and control. The technology used by the accused allowed him to take videos of the clothed breasts of his students ― for extended periods of time ― in angles and in proximity that went beyond the access that the students allowed in this setting, thus infringing their autonomy.
[147] The recordings were objectively sexual in nature. The focus of the recordings was on the young women's intimate body parts, taken at close range. In addition, while not determinative of a violation of sexual integrity, it is no longer in dispute that the recordings were made for a sexual purpose. The combination of these factors leads to the conclusion that by surreptitiously recording images of their breasts, the accused infringed the sexual integrity of the students.
[148] Had Mr. Jarvis placed himself in the position of the pen-camera and simply observed the students, they would undoubtedly have recoiled. It was reasonable in the circumstances for the students to expect not to be observed and recorded in the way that they were. Accordingly, the Crown has discharged its burden of proving that the students recorded by Mr. Jarvis were in circumstances that gave rise to a reasonable expectation of privacy for the purposes of s. 162(1)(c) of the Criminal Code.
Appeal allowed.
Solicitors
Solicitor for the appellant: Attorney General of Ontario, Toronto.
Solicitors for the respondent: Ursel Phillips Fellows Hopkinson, Toronto; Ryder Wright Blair & Holmes, Toronto.
Solicitor for the intervener Attorney General of British Columbia: Attorney General of British Columbia, Victoria.
Solicitor for the intervener Samuelson‑Glushko Canadian Internet Policy and Public Interest Clinic: University of Ottawa, Ottawa.
Solicitor for the intervener Privacy Commissioner of Canada: Office of the Privacy Commissioner of Canada, Gatineau.
Solicitors for the intervener Canadian Civil Liberties Association: Lax O'Sullivan Lisus Gottlieb, Toronto.
Solicitors for the intervener Ontario College of Teachers: McCarthy Tétrault, Toronto.
Solicitor for the intervener Information and Privacy Commissioner of Ontario: Information and Privacy Commissioner of Ontario, Toronto.
Solicitor for the intervener Women's Legal Education and Action Fund Inc.: Women's Legal Education and Action Fund Inc., Toronto.
Solicitors for the intervener Criminal Lawyers' Association (Ontario): Henein Hutchison, Toronto; Markson Law Professional Corporation, Toronto.
[^1]: Mr. Jarvis' application to have the videos excluded from evidence on the basis of ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms was denied by the trial judge. That ruling was upheld by the Court of Appeal and is not at issue in this Court.
