What is voyeurism?
In R. v. Jarvis, the Supreme Court of Canada dealt with the offence voyeurism under section 162(1) of the Canadian Criminal Code.
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 [page505] 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.
Significance of R. v. Jarvis
Voyeurism has been a criminal offence since 2005, but this case presented a new challenge of interpreting legal elements of the offence. Specifically, the Court considered what having a reasonable expectation of privacy means.
To have a better understanding of the Court’s decision, it is important to consider the circumstances of the charges.
Facts of the Case
Jarvis was a high school teacher who used a hidden camera, concealed inside a pen, to record female students in the classrooms, hallways, and other common areas of the school. The recordings were focused mostly on the female students’ faces and upper bodies. The students were unaware of the recordings. Upon discovery of the hidden camera, Jarvis was charged with voyeurism.
The court held that Mr. Jarvis was guilty of voyeurism since the students could reasonably expect not to be recorded using a hidden camera while at school.
What is “expectation of privacy” under s. 162(1) of the Criminal Code?
In holding that the facts of the case supported a finding of guilt, the Supreme Court defined reasonable expectation of privacy as follows:
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 should take into account the entire context in which the impugned observation or recording took place.
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 inform whether there was a reasonable expectation of privacy in a particular case.
(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 in any particular situation. The heightened impact of recording on privacy has been recognized by this Court in other contexts, as will be discussed further at para. 62 of these reasons.
(3) Awareness of or consent to potential observation or recording. I will discuss further [page509] 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 on privacy has been recognized by the courts, as I will discuss further at para. 63 of these reasons.
(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 intimate parts of a person’s body. This Court has recognized, in other contexts, that the nature and quality of the information at issue are relevant to assessing reasonable expectations of privacy in that information. As I will discuss further at paras. 65-67 of these reasons, this principle is relevant in the present context as well.
(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 [page510] abuse of the trust or authority that characterized the relationship. This circumstance is relevant because it would be reasonable for a person to expect that another person who is in a position of trust or authority toward her will not abuse this position by engaging in unconsented, unauthorized, unwanted or otherwise inappropriate observation or recording.
(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.