R v Jarvis : Schooling Privacy

NOTE: there is a publication ban in this case, pursuant to section 486.4 of the Criminal Code, which prohibits the dissemination of information that may identify the witnesses. This post is intended to comply with the restriction so that it may be published.

In R v Jarvis, 2017 ONCA 778 [Jarvis] the Ontario Court Appeal found itself in a debate over when an individual has a “reasonable expectation of privacy.” Specifically, the Court was faced with the question of whether high school students have a reasonable expectation of privacy at school. Mr. Jarvis, a school teacher, was charged with voyeurism, under s162(1)(c) of the Criminal Code, RSC 1985 c C-46 [the Code].

While the appeal was initially focussed on whether the recordings were made for a sexual purpose, the cross-appeal from Mr. Jarvis forced the court to consider s8 and 24(1) of the Charter as well as the meaning of a reasonable expectation of privacy.

The ensuing dialogue between the majority of the panel and the dissenting opinion from Justice Hushcroft, sheds some interesting light on a topic that courts, along with society, are increasingly confronting: how do we conceive of and regulate privacy? While the majority resorted to the familiar public/private binary, the dissent challenges us to think about privacy contextually, as a normative good. The result is an acquittal, and a conversation that will likely continue at the Supreme Court of Canada.

Why are we talking about privacy?

Besides serving as the factual foundation for the discussion, most of the details of the case are not central for the debate about privacy. The principal of the school where Mr. Jarvis was employed observed Mr. Jarvis talking to a female student in the hall while holding a pen with a flashing red light at its top. The principal confiscated the pen and sent it to police. The police found stored on the pen several recordings of female students focussed on their breasts. Mr. Jarvis was charged under s162(1) of the Code, which reads as follows:

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.

As a relatively new offence, enacted in 2005, the elements of s162(1) have yet to receive meaningful judicial interpretation – but it is clear that there are three main elements the Crown must prove. Mr. Jarvis was acquitted at trial because the Judge was not convinced beyond a reasonable doubt that the recordings were done for a sexual purpose (element 3; Jarvis para 19). However, the trial judge did find that the recordings were made surreptitiously (element 1; Jarvis para 18) and that the students had a reasonable expectation of privacy at school (element 2; Jarvis para 19).

The Crown appealed the acquittal, asserting that the trial judge erred in finding that the recordings could have been made for a purpose other than a sexual one. The Court of Appeal agreed with the Crown (Jarvis, para 55). However, Mr. Jarvis asserted that the trial judge made two other errors of law: one with respect to admission of evidence under s24(2) of the Charter, and second in finding that the students were in circumstances giving rise to a reasonable expectation of privacy. The latter will be the focus of this post.

Majority: location, location, location

Justice Feldman, writing for the majority, couched her argument both in the history of the voyeurism offence and the meaning of privacy. The purpose of the offence is relatively easy to discern because it was articulated in a Parliamentary paper on voyeurism and a reaction to increasing public concerns over the availability of recording technology (Jarvis, para 23). Further, the wording of the offence on its face reflects a focus on privacy – it is not enough to record surreptitiously – rather the recording must have offended a reasonable expectation of privacy. This begs the question of what this reasonable expectation entails and when do we have it?

Justice Feldman reviewed the Oxford English Dictionary definition of privacy to find that location is the governing principle for determining if there is a reasonable expectation of privacy. Using a location-based analysis means that in certain locations – like our homes, or bathrooms – there is a reasonable expectation of privacy. However, whether a person has a reasonable expectation of privacy in what is typically conceived of as a public place is more problematic. For the majority, these situations are limited, and does not include being at school.

The majority, relying on the wording of the offence, analytically separates expectations of privacy from the sexual nature of the breach. Because an expectation of privacy is specifically mentioned in s162(1), it must mean something that is not captured in the other elements of the offence (Jarvis, para 108). It is interesting that lack of consent – a core principle governing both sexual offences and privacy regulations – is folded into the surreptitious nature of the recording element of the offence (Jarvis, para 103). The assumption is that a surreptitious recording is one without consent. Yet consent is not factored into finding an expectation of privacy – there is no starting assumption that we expect privacy unless a student otherwise consents. Notably Justice Feldman writes that students would expect not to be recorded by their teacher, but this expectation is based on nature of the relationship. So, for the majority once we have crossed the (invisible) border from private to public space, our expectations about privacy change and so does the law.

Dissent: the social nature of privacy

Justice Hushcroft, in dissent, critiques much of the majority’s approach to privacy. He asserts that privacy is not a descriptive claim, but a normative one. In fact, Justice Feldman’s location-based approach is in itself a normative analysis, based on certain evaluations of space. We cannot just ask if someone has a reasonable expectation of privacy. Rather, based on the individual and society’s interests as well as the circumstances, we must ask whether privacy should be prioritized (Jarvis, para 117).

Justice Hushcroft’s contextual approach allowed him to reject the majority’s restrictive public/private binary and find that students do have a reasonable expectation of privacy at school. He found that the focus on location leads to both under- and over- inclusive results. For example, finding an expectation of privacy rooted in the student-teacher relationship means that the expectations are different between teachers and other school personnel. Furthermore, he criticized how the majority separated the analysis of surreptitious recording on the one hand and privacy on the other as it narrows the scope of the voyeurism offence, contrary to Parliament’s intentions. Instead, Justice Hushcroft examined five factors – including controlled access to the school and its surveillance cameras, and a staff policy against surreptitious recordings—that indicate there should be an expectation of privacy (Jarvis, para 131). In doing so his judgement recognizes that being seen is different from being recorded in a way that undermines one’s personal and sexual integrity. The latter is the mischief Parliament intended to prevent and what the majority judgement permits.

The Debate Continues…

Justice Hushcroft’s dissent creates an appeal as of right for the Crown. Beyond the appeal as of right, there is a notable public interest element to the offence and the judgment rendered by the Court of Appeal for the Supreme Court of Canada to consider: the debate in law between the majority and dissent about how the reasonable expectation of privacy is conceptualized. This debate is a small window into an increasingly relevant contest about technology, privacy, and law. As mentioned in both the majority and dissenting judgments, while the Charter engages with privacy concerns, there is no freestanding right to privacy. Thus when courts are asked to determine what privacy means between two private parties, they must ask bigger questions about how we divide space and understand relationships. While a location-based argument is a good starting point for answering some of those questions, it cannot be the final analysis. Much of modern society has been built on a mythic division between public and private, a dichotomy that is crumbling under new technologies and medias. Just as there is no freestanding right to privacy, a conception of privacy cannot be determined independent of a conception of space and an understanding of appropriate relationships and the role of consent.

In fact, s162 requires more than a determination of criminal conduct (did the accused surreptitiously record?) but an assessment of the context (was there a reasonable expectation of privacy?). Obviously this is not the only context-based or consent focussed offence, but its wording requires judges to give meaning to a reasonable expectation privacy as it relates to surreptitious recordings. Where and to who privacy is allocated is telling. The who in question in the judgement was not females, and the location was not a sensitive area of the body. The court did not ask if women can always expect not to have their breasts recorded (without consent). Rather they were looking at students, while they were at school. This is all to say that the framing of the question was in itself a value act: the location of privacy for both the majority and the dissent is transient and institutional. Neither consider whether there is a reasonable expectation of privacy belonging to the gendered body.

The majority’s focus on location and yet their turn to a relationship-based analysis indicates that our privacy expectations may go beyond our physical location. Justice Hushcroft’s reminder that privacy is a normative good is a call to reconsider how we classify our expectations, and how we evaluate privacy vis-a-vis other goods and objectives. His approach rejects the road towards a categorical approach the majority is taking and instead steers us towards a contextual analysis. This richer conception of privacy, in my opinion, is a necessary starting point from which we can achieve robust privacy objectives