Content Regulation / Censorship, Privacy, Data Protection and Retention, Defamation / Reputation
Hegglin v. Google
Closed Mixed Outcome
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The Supreme Court of Canada convicted a teacher for voyeurism for secretly recording his students in common areas of a school. This offence is committed when a person secretly observes or makes a visual recording of another person with a sexual purpose where the person being observed or recorded has a reasonable expectation of privacy. The Court concluded that the teacher acted contrary to the reasonable expectations of privacy when he recorded the students’ breasts, faces and upper bodies with a pen camera while they engaged in school activities. The Court held that people do have a reasonable expectation of privacy in public spaces, such as school grounds, and that where a person “does not expect complete privacy [this] does not mean that she waives all reasonable expectations of privacy” [para. 61].
In June 2011, a principal of a school in London, Ontario, Canada, was informed that an English teacher, Ryan Jarvis, was using a camera concealed inside a pen to record female students while they were engaging in school-related activities in common areas of the school. The principal observed Jarvis using the pen – which had a camera which could record with audio and the recordings could be downloaded to a computer – and then confiscated the pen camera. The evidence in the case included 37 video files, which were all filmed in areas of the school and featured students aged between 14 and 18 years old. Most of the videos featured female students in “low-cut or close-fitting tops ” and many were shot “at angles that capture more of [the students’] breasts than would be visible if the students were recorded head on” [para. 10]. None of the students were aware the recordings were being made and none consented to the recordings, and a school board policy prohibited the making of the recordings.
The police identified 27 female students who had been featured in the recordings, and charged Jarvis with 27 counts of voyeurism under s. 162(1)(c) of the Canadian Criminal Code (which were later converted to one global charge the provision). Section 162(c), introduced in 2005, states: “Everyone 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.” There are three elements to the offence under subsection 3: (i) whether the accused made a secret recording; (ii) whether the students recorded had a reasonable expectation of privacy; and (iii) whether the recordings were made for a sexual purpose.
Jarvis was tried by the Ontario Superior Court of Justice. At the trial he admitted that he had made a secret recording, and so the two questions the trial court had to answer were whether the students had a reasonable expectation of privacy and whether the recordings were made for a sexual purpose. Jarvis argued that the circumstances relevant to conclude whether a reasonable expectation of privacy exists should be determined by analyzing the physical features of the space where a person is located [para. 26]. He argued that the students had been recorded in common areas of the school and therefore they knew they could be observed by others so they did not have a reasonable expectation of privacy.
The trial judge held that the students had a reasonable expectation of privacy while at school, as although the students had “a lower and different expectation of privacy at the school than they would have had at home, they nonetheless had a reasonable expectation that they would not be surreptitiously recorded by Mr. Jarvis” [para. 14]. However, the judge held that there was no conclusive proof that the recordings had been made for a sexual purpose, and that even though the recordings focused mostly on female students’ “faces, bodies and cleavage or breasts” and that “although the ‘most likely’ conclusion based on the evidence was that Mr. Jarvis had recorded the students for a sexual purpose, ‘there may be other inferences to be drawn’” [para. 15]. Accordingly, Jarvis was acquitted.
The Crown appealed the acquittal to the Court of Appeal for Ontario. The Court of Appeal held that there was “an overwhelming case of videos focused on young women’s breasts and cleavage” and that the lower court had erred in finding that the recordings had not been made for a sexual purpose. However, the Court also held that the lower court had erred in holding that the students had a reasonable expectation of privacy. The Court of Appeal described the expectation of privacy as being that “a person typically expects privacy when she is in a place where she can exclude others and feel confident that she is not being observed” and that as the students were in common areas of the school “where they would expect that others could see them and where they knew they would be recorded by the school’s security cameras” there was no expectation of privacy in this situation [para. 17]. One judge dissented from the majority finding, stating that he would have found there was an expectation of privacy on the grounds that the question is not purely about the “location and the ability to exclude others from that location” [para. 18]. The dissenting judge would have held that the question to be answered is whether a “person’s interest in privacy should be given priority over competing interests” [para. 18].
The Crown then appealed to the Supreme Court.
Chief Justice Wagner delivered a decision on behalf of six members of the bench. Justice Rowe delivered concurring reasons on behalf of three members of the bench. The main issue before the Court was whether the recorded students had a reasonable expectation of privacy in common areas of the school, and so what the phrase, “circumstances that give rise to a reasonable expectation of privacy” from section 162(1) meant. Before this Court it was no longer in dispute that Jarvis had made the recordings for a sexual purpose.
Jarvis argued that reading the Act in its entirety leads to the interpretation of “circumstances that give rise to a reasonable expectation of privacy” as meaning “circumstances in which a person has a reasonable expectation that she, or a part of her body, will not be observed by others” [para. 25]. He submitted that this would mean that the offence of voyeurism would only be committed when a person is in a place where they did not expect their body to be observed. He argued that the only factors to be considered in this enquiry are the “physical features” of the location and the “degree of control” the individual person has over who has access to them in that location, and that questions such as the relationship between the person being observed and the observer, whether the conduct is mere observation or recording, or what parts of the body are being observed will always be irrelevant to the enquiry [para. 26]. Jarvis maintained that as the students were in common areas of the school they could not have had a reasonable expectation of privacy.
The Crown argued that the enquiry into whether there is a reasonable expectation of privacy must go further than merely looking at the location and must be “determined on the basis of the totality of the circumstances” [para. 27]. The Crown maintained that – given that there were recordings made, the recordings were of a sexual nature, there was a trust relationship between Jarvis and the students, and that there was a policy prohibiting such recordings – the students did have a reasonable expectation of privacy.
The Court introduced a non-exhaustive list of contextual considerations that could be used by a court to determine whether a person is in circumstances that give rise to a reasonable expectation of privacy, including the location, the nature of the conduct, awareness of consent to potential observation or recording, manner of observation or recording, the subject matter of the observation or recording, any rules governing the conduct, the relationship between the parties, the purpose for which the observation or recording was done, and the personal attributes of the person doing the observing or recording. The Court emphasized that the enquiry will always be a contextual one, and in some situations some of the factors in the list may outweigh others. It also stressed that the fact that a sexual purpose and that the observation or recording is done surreptitiously are distinct elements of the offence does not mean that they cannot be considered as factors in determining whether the other element – the reasonable expectation of privacy – has been met.
In considering the legislative purpose behind the provision, the Court described privacy as being the “concept of freedom from unwanted scrutiny, intrusion or attention” [para. 36]. It noted that there may still be an expectation of privacy even when a person is in a public place and that a person may “expect to be the subject of certain types of observation or recording but not to be the subject of other types” [para. 38]. Accordingly, the Court stated that privacy “is not an all-or-nothing concept” [para. 41]. The Court noted that Parliament had chosen to use the word “circumstances” in section 162(c), in that the person being observed or recorded is “in circumstances that give rise to a reasonable expectation of privacy”, and so it is consistent with that choice of words to hold that a variety of factors should be considered to determine where there was a reasonable expectation of privacy.
The Court stated that interpreting section 162(c) in the way Jarvis did would “undermine Parliament’s intention that s. 162(c) prohibit surreptitious observation or visual recording that amounts to sexual exploitation or that represents the most egregious breaches of privacy” as it would only apply to individuals in a private or semi-private setting. This would invalidate Parliament’s intention that the provision address concerns that technological developments threaten children and other vulnerable individuals’ sexual integrity.
The Court examined the broader legal context and noted that the concept of a reasonable expectation of privacy has played a “central role” in the Court’s jurisprudence on the right to privacy under section 8 of the Charter of Rights and Freedoms. It set out the principles which have been established in this jurisprudence. With reference to the cases of R v. Plant, R v. Edwards, Schreiber v. Canada (Attorney General), R v. Buhay and R v. Tessling, the Court listed the first principle as being that determining whether there is a reasonable expectation of privacy is a “contextual assessment that takes into account the totality of the circumstances” [para. 60]. The Court noted that the second principle is that “privacy is not an all-or-nothing concept” in that “simply because a person is in circumstances where she does not expect complete privacy does not mean that she waives all reasonable expectations of privacy” [para. 61]. The Court stressed that technological developments pose a threat to privacy and that “[w]hile evolving technologies may make it easier, as a matter of fact, for state agents or private individuals to glean, store and disseminate information about us, this does not necessarily mean that our reasonable expectations of privacy will correspondingly shrink” [para. 63]. Another principle the Court mentioned is that the concept of privacy does not only include territorial interests, but also personal and informational privacy interests, and that a person has a right to determine what and how personal information is shared. The Court also emphasized that the question of an expectation of privacy is not a risk analysis and so it is not concerned about whether a person “put themselves at risk of the intrusion they experienced”, and that the question is normative rather than descriptive in that whether the expectation exists “is to be answered in light of the norms of conduct in our society” [para. 68].
In applying the principles to the present case, the Court held that “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” [para. 72]. The Court considered the location, content and manner of the recordings; that the conduct was recording and not mere observation; that there was a school board policy prohibiting the conduct; that there was a relationship of trust between Jarvis and the students, and that the subjects of the recordings were young people. The Court stressed that although the students were aware that, in the common areas of the school, they were being observed, “a high school is not an entirely ‘public’ place” as access is limited and that awareness of observation is distinct from awareness of recording [para. 73]. The Court also recognized that the nature of the recordings is significant as – even though the students knew there were security cameras in the school – “not all forms of recording are equally intrusive” and that awareness of recording by security cameras “tells us little about their privacy expectations with respect to the recording done by Mr. Jarvis” [para. 75]. The Court stressed that the Charter jurisprudence establishes the relevance of the context of the recording, and referred to the caseof R v. Rudiger in holding that the close-up nature of the recordings, the fact that some students were specifically targeted, and that the videos focused on the students’ breasts all contributed to the finding that there had been reasonable expectation of privacy. Quoting the case of A.B. v. Bragg Communications Inc, the Court commented that “the values that underlie privacy ‘apply equally if not more strongly in the case of young persons’” [para. 86].
Accordingly, the Court held that the Crown had proven beyond a reasonable doubt – the standard for a criminal conviction – that Jarvis “recorded persons who were in circumstances that gave rise to a reasonable expectation of privacy, as that expression is used in s. 162(1) of the Criminal Code” [para. 91]. It therefore convicted Jarvis and remitted the matter to the lower court for sentencing,
Justices Rowe, Côté and Brown, would also have convicted Jarvis, but disagreed with the majority on two issues. These judges disagreed with the use of Charter jurisprudence to interpret the Criminal Code, and would have held that Charter rights apply to protect citizens from breaches of their rights by state actions whereas the Criminal Code addresses the imposition of criminal sanction on an individual and so the analysis of the two – even though they both involve privacy – should remain distinct. The minority would also have limited the factors to be considered when determining whether there was a reasonable expectation of privacy, to the purpose of the legislative provision and its situation in the broader sexual offences scheme (which examines the violation of an individual’s “violation of autonomy and integrity”) [para. 126]. The key elements the minority would have examined were whether the observation or recording occurred in a way that caused the subject “to lose control over their image; and also infringes their sexual integrity” [para. 133].
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The Supreme Court introduces contextual approaches to violations of privacy, and emphasizes that privacy extends to personal and informational interests.
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