What You Need to Know In Privacy Case Law and Litigation: Summary of Panel Discussion

  • June 27, 2019
  • Sarah Nasrullah

The Privacy Summit of 2019 presented a panel discussion on “What you need to know in Privacy Case Law and Litigation” with Justin Safayeni, Sajjad Nematollahi, and Sean Moreman. [1]  

Justin Safayeni, Stockwoods LLP, analyzed three privacy cases outside of class actions. The first one was R v. Jarvis, 2019 SCC 10, where the Supreme Court dealt with the issue of voyeurism. The background facts are that a high school teacher was accused of using a concealed pen camera to surreptitiously record high school students in common areas of the school like the cafeteria. The focus was specifically on female students’ breasts. The students didn’t know they were being filmed and did not provide consent to being recorded.

The definition of voyeurism (s. 162(1)(c) of the Criminal Code) includes the surreptitious recording of a person who is in circumstances that give rise to a reasonable expectation of privacy. The trial judge decided that the students had a reasonable expectation of privacy. It was overturned by the Court of Appeal which decided (2:1) that there was no reasonable expectation of privacy because the students were in a public place where they could be observed by anyone. The Supreme Court, however, decided that there was a reasonable expectation of privacy even in a public place and laid down a non-exhaustive list of nine factors for determining so: