In R v Jarvis, 2017 ONCA 778, the Ontario Court of Appeal split on whether or not high school students had a reasonable expectation of privacy while on school grounds.
Jarvis was a highschool teacher. He surreptitiously recorded female students, at school, with a pen camera. The videos focused on the students’ chests and cleavage. The students did not know they were being recorded and did not consent to such activity. The videos were taken in areas of the school such as hallways which were accessible to many people at once. The school also had 24 hour surveillance videos recording the students in these areas for safety purposes.
The appellant was charged with voyeurism under section 162(1)(c) of the Criminal Code. One of the issues on appeal was whether or not the recordings were made “in circumstances that give rise to a reasonable expectation of privacy” within the meaning of this section.
The Majority Decision
The majority held that the students did not have a reasonable expectation of privacy on school grounds.
The judges accepted that it was possible to have a limited reasonable expectation of privacy in a public place. They also accepted that students should expect a school to be a “protected, safe environment”, where both their “physical safety as well as their personal and sexual integrity is protected.”
Nevertheless, the majority held that in areas of the school where students congregate and where classes are conducted, a person would not have any expectation that he or she will not be observed or watched. And while the students would also have properly believed they were not being observed or recorded, that did not create a reasonable expectation of privacy. Rather, it stemmed from their expectations of how a teacher would treat them.
The Dissent
Huscroft J.A., in dissent, held that the students did have a reasonable expectation of privacy.
As a starting point, his Honour noted that technological developments challenge our ability to protect privacy. As technological developments have now made it possible to access aspects of our lives that were previously inaccessible, how does that affect our reasonable expectations of privacy?
Whether or not one has a reasonable expectation of privacy is a normative question. Huscroft J.A. differed with the majority’s emphasis on the location of the activities in question as being the quintessential factor in the privacy analysis. Rather, accepting that the students had a reasonable expectation of privacy was to say that their legitimate interests should be given priority over competing interests. A location-based approach, as employed by the majority, was problematic.
The case boiled down a single question: should high school students expect that their personal and sexual integrity will be protected while they are at school? The answer was yes.
That the students could have been seen by other students or school employees while at school did not preclude a finding that they had a reasonable expectation of privacy. The students’ interest in privacy was entitled to priority over the interests of anyone who would seek to compromise their personal and sexual integrity. Viewed from that perspective, the students’ did have a reasonable expectation of privacy vis a vis being surreptitiously recorded by a teacher for a sexual purpose.
Public Privacy
Whether or not one can still claim a reasonable expectation of privacy in an activity despite the fact it occurs in public remains a vexing issue for lawyers and courts. I wrote a short article a few years ago about this issue after the Supreme Court of Canada’s decision in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, [2013] 3 SCR 733, 2013 SCC 62. Interested readers may find this helpful as context for the Jarvis decision.
Given there was a dissent on a point of law, this case may very likely be destined for the Supreme Court of Canada. In my view, the dissenting justice has the better of the argument and students should know they have a reasonable expectation of privacy at school and that their sexual integrity will be protected from surreptitious video recordings by anyone.
About the author
Brock Jones
This post is re-published, with permission, from Brock Jones' Youth Criminal Justice Blog (https://youthcriminaljustice.ca).