• R v Jarvis: Is There a Reasonable Expectation of Privacy in Schools?
  • December 28, 2017
  • The Respondent, a high school teacher, was surreptitiously recording female students and teachers using a camera pen. After receiving a number of reports and observing the teacher firsthand, the principal confronted the teacher and obtained the camera pen. The principal contacted the police and the teacher was arrested. Ultimately, the teacher was charged with voyeurism pursuant to section 162(1)(c) of the Criminal Code, which states:

    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.

    At trial, the teacher argued that section 8 of the Charter (protection against unreasonable search and seizure) had been breached because the police conducted a “cursory search” of the contents of the camera pen without a warrant and before he was arrested. Despite finding a breach of the Charter, the trial judge admitted the evidence of the videos because the students did not have an expectation of privacy. The trial judge found the teacher not guilty because he had a reasonable doubt that the videos were done for a sexual purpose. The Crown appealed.

    The Majority: No Reasonable Expectation of Privacy at School

    The Ontario Court of Appeal considered two issues:

    1. Whether the videos were “done for a sexual purpose”; and

    2. Whether the students were “in circumstances that give rise to a reasonable expectation of privacy”.

    With respect to the first issue, the Court of Appeal held that the fact the videos focused on the cleavage of female students sufficiently proved the videos were made for a sexual purpose. There was no other inference which could be drawn as to the purpose of the videos.

    However, on the second issue the majority of the Court of Appeal dismissed the appeal because the Crown failed to prove a requisite component of the offense: that it occurred in circumstances which gave rise to a reasonable expectation of privacy.

    The majority reasoned that the privacy requirement in the offense would be redundant if being surreptitiously recorded without consent (and for a sexual purpose) were sufficient to give rise to a reasonable expectation of privacy. As a result, the majority assessed the privacy requirement separate and apart from the other elements of the offense.

    On a plain meaning of privacy, a person’s location is the governing factor in the determination of a reasonable expectation of privacy. However, the majority acknowledged that an individual can have a reasonable expectation of privacy in a public place. With respect to the school environment specifically, the majority of the Court wrote:

    [104] It is clear that students expect a school to be a protected, safe environment. It should be a place where their physical safety, as well as their personal and sexual integrity is protected. However, the areas of the school where students congregate and where classes are conducted are not areas where people have any expectation that they will not be observed or watched. While access to school property is often restricted, access is granted to students, teachers, other staff, and designated visitors. Those who are granted access are not prohibited from looking at anyone in the public areas. Here there were security cameras in many locations inside and outside the school. No one believed they were not being observed and recorded.

    The majority concluded that students’ expectation that a teacher would not secretly observe or record them for a sexual purpose arises from the nature of the relationship, not from an expectation of privacy. A person fully clothed in public (and not engaged in toileting or sexual activity) will not usually have a reasonable expectation of privacy.

    The Dissent: Students Have a Reasonable Expectation of Privacy at School

    Huscroft J.A. dissented, in part. He agreed with the majority that the videos were “done for a sexual purpose.” However, he disagreed with the majority’s conclusion that a reasonable expectation of privacy did not exist.

    Huscroft J.A. outlined the issue quite simply: should high school students expect that their personal and sexual integrity will be protected while they are at school? In answering this question, he wrote that the Court must consider particular circumstances, which, in this case, included the following:

    • Students are required to attend school for an educational purpose;

    • Schools are not public places open to all; access to them is controlled by school authorities;

    • The high school’s hallways and grounds are under 24-hour video surveillance, but the surveillance does not focus on particular students or their body parts;

    • Access to surveillance video recordings for personal use is not permitted; and

    • School board policy prohibited the appellant from making the type of visual recordings that he made.

    Taken together, Huscroft J.A. concluded that the majority had adopted an unduly narrow conclusion, which assumed an all-or-nothing approach. Rather, Huscroft J.A. opined that even if complete privacy is untenable, an individual can have a reasonable expectation of privacy even to a limited extent.

    Takeaway

    This decision affirms that the law on privacy, its requirements, and its protection remain unsettled. We expect this decision will be appealed to the Supreme Court of Canada, both because of a statutory right to appeal and the public interest in the meaning of privacy in public places, such as schools. Huscroft J.A. correctly concluded the result of the majority’s interpretation of a reasonable expectation of privacy is that “surreptitious visual recording of high school students for a sexual purpose, while they are at high school, is not illegal” (at para 134).

    The question of the meaning of privacy in public places certainly stretches much further than just schools. What about a person surreptitiously recording the cleavage of females passing by on a public street or in other public areas where people may not have an expectation that they will not be observed or watched? For example, what about an individual in a library, restaurant, recreation facility or retail establishment surreptitiously recording down the shirts of others in the establishment? Arguably, the decision by the Ontario Court of Appeal would result in a finding that the individuals being recorded in such situations did not have a reasonable expectation of privacy due to the fact that they were in a public place. What if the person doing the recording is an employee, or what if the individuals being recorded are employees in the establishment? What actions can the owner or employer take to deal with such a situation? This decision clearly raises a number of interesting questions for the owners and employers in many establishments that are open to the public.