Feb 2019 Charity & NFP Law Update
On February 14, 2019, the Supreme Court of Canada (“SCC”), in a case that will be of interest to charities and not-for-profits, released its decision in R v Jarvis, overturning two lower court decisions in which a high school teacher, Mr. Jarvis, was twice acquitted of charges of voyeurism under paragraph 162(1)(c) of the Criminal Code. The SCC convicted the teacher, who had been secretly recording videos of female students’ breasts and cleavage using a camera that was hidden within a pen. Mr. Jarvis was charged under paragraph 162(1)(c), which states:
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 […]
(c) the observation or recording is done for a sexual purpose.
The key elements of an offence under paragraph 162(1)(c) are: (1) whether the circumstances gave rise to a reasonable expectation of privacy; and (2) whether the observation or recording was done for a sexual purpose. The Ontario Court of Appeal had already determined that Mr. Jarvis had made the videos for a sexual purpose. Therefore, the only issue before the SCC was whether the students recorded by Mr. Jarvis were in circumstances that gave rise to a reasonable expectation of privacy. The students, who ranged in age from 14 to 18 years old, had all been recorded without their knowledge or consent in common areas of the schools such as hallways, classrooms and computer labs.
In holding that the circumstances did give rise to a reasonable expectation of privacy and convicting Mr. Jarvis of voyeurism, the SCC majority (the “Majority”) rejected a narrow, “all or nothing”, location-based interpretation of “reasonable expectation of privacy” in which a person only has a reasonable expectation of privacy in a place where she does not expect to be observed by others (such as her own home) and loses all expectations of privacy if she is in a place where she knows she can be observed by others or from which she cannot exclude others. Instead, the Majority adopted a broad interpretation in which a person retains some expectation of privacy even while knowing that she could be viewed or even recorded by others in a public place. The Majority stated that a typical or ordinary understanding 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 others.
Stating that the determination of whether there is a reasonable expectation of privacy is a contextual one that must be made in the totality of the circumstances, the Majority provided a non-exhaustive list of nine factors to consider in determining whether circumstances give rise to a reasonable expectation of privacy. The location the person was in when the impugned conduct took place is only one of the factors to be considered. Other factors include whether the person was observed or recorded; whether there was consent; any applicable rules, regulations or policies in place; the nature of the relationship between the parties; the purpose for which the recording or observation was made; and the attributes of the person who was recorded or observed.
In this case, the Majority found, among other factors, that Mr. Jarvis had not only “observed” but had made recordings, which could be manipulated, shared and viewed at length in a manner that would be unimaginable if he had been standing next to a student staring at her breasts; that the recordings were of identifiable individuals, who were also vulnerable minors and young persons; that Mr. Jarvis had targeted certain students; that the recordings focused on intimate parts of the students’ bodies; that he had used hidden technology that allowed for recording at close range without the students being aware of it; that there was a trust relationship between Mr. Jarvis and the students that he had abused; that there was a school board policy in place that prohibited such recordings; and that Mr. Jarvis had a sexual purpose for making these videos. Accordingly, the Majority held that the Crown had established beyond a reasonable doubt that Mr. Jarvis recorded persons who were in circumstances that gave rise to a reasonable expectation of privacy within the meaning of subsection 162(1) of the Criminal Code.
The fact that some of the students were minors and all of them were young persons also supported the finding of reasonable expectation of privacy and strengthened the argument that they could reasonably expect not to be recorded in the manner they were, primarily due to children’s inherent vulnerability and inability to protect their own privacy interests.
Additionally, in its analysis, the Majority recognized the threat to privacy caused by new and evolving technologies, noting that even where a recording is not made, technology may allow a person to see or hear more acutely. Importantly, the Majority stated that evolving technologies do not necessarily mean that our expectations of privacy will shrink correspondingly.
This decision will expand the range of settings and contexts in which individuals will arguably have a reasonable expectation of privacy. Charities and not-for-profits must be vigilant about protecting the privacy of their clients and other stakeholders, especially minors and young persons. Charities and not-for-profits must also be aware of the implications of and risks posed by evolving, developing and increasingly ubiquitous technology. For these reasons, charities and not-for-profits should carefully screen and supervise their employees and volunteers, and ensure that their privacy policies and protocols are regularly updated and reviewed.