R. v. Jarvis: Voyeurism and Privacy in Public Places

Under section. 162(1)(c) of the Criminal Code the offence of voyeurism 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.

 See R. v. Rudiger, 2011 BCSC 1397 (CanLII), 244 C.R.R. (2d) 69, at para. 75.

The voyeurism offence was enacted in 2005 to address public concerns with the rapid advent of technology that could be used to spy on people surreptitiously for sexual purposes.  

While the offence of voyeurism is almost fifteen years old, there has been relatively few decisions under the section, which makes the Supreme Court of Canada’s release of its unanimous decision in R. v. Jarvis all the more important. In R. v. Jarvis the Supreme Court of Canada has provided a doctrinal framework for determining when circumstances will give rise to a reasonable expectation of privacy within the meaning of section 162(1)(c).

Jarvis was charged with voyeurism after using a camera concealed inside a pen to make video recordings of female students at the high school where he was a teacher. 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 breasts and cleavage. The students did not know that they were being recorded.

Jarvis was acquitted at trial, and that acquittal was upheld by the Court of Appeal for Ontario which reasoned—using principles of statutory interpretation— that under section 162 the fact of being surreptitiously recorded without consent for a sexual purpose is not enough to give rise to a reasonable expectation of privacy.

R. v. Jarvis, 2017 ONCA 778 (CanLII), at para. 108.

In a 2017 blog post I questioned that court’s majority decision and suggested that the case would likely be appealed to Canada’s highest court. Yesterday the Supreme Court of Canada overturned the decision of Ontario’s appellate court. 

The problem with the analysis undertaken by the majority of the Court of Appeal, as I see it, is its implicit obedience to the idea that privacy is lost in public places in circumstances where one is aware that her activities may be observed.

While a belief that you may be observed or recorded within a public place may be relevant to whether you possess a reasonable expectation of privacy, it should not be determinative. Privacy is a normative not a descriptive standard, and thus is not driven by an assumption of risk. 

Where the provincial appellate court focused on the type of place where the observation/recording occurred, the Supreme Court of Canada has centered the question of whether circumstances give rise to a reasonable expectation of privacy within the meaning of s. 162 around the “type” of observation or recording that is made: 

Would a person reasonably expect not to be the subject of the type of observation or recording that in fact occurred? 

See R. v. Jarvis, 2019 SCC 10 (CanLII), at para. 5. 

The inquiry is a contextual one: a court must consider the entire context in which the observation or recording took place.

See R. v. Jarvis, 2019 SCC 10 (CanLII), at para. 5 & 30;

See paragraph 5 for a non-exhaustive list of considerations that may be relevant to this inquiry.

If the answer to this question is yes, then that person is, within the meaning of section 162(1) “in circumstances that give rise to a reasonable expectation of privacy”.

Stuart O’Connell, O’Connell Law Group (All rights reserved to author).