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LEXPERT MAGAZINE | MARCH 2019 23 for example, did it target a specific person or persons, or was it a general shot of a group, in effect an "incidental recording"; Did any specific rules or policies govern the recording — though a set of permissive policies may not, in themselves, be able to override a REOP; e relationship between the person do- ing the recording, and the person recorded, particularly if there is any relationship of trust between them; e purpose for which the recording was done; e personal attributes of the person who is recorded — for example, are they a child or young person. Put another way, the SCC makes clear that privacy is not an all-or-nothing con- cept but rather the relevant legal response in any particular case will be determined by context. In fleshing out this approach, the SCC usefully draws on the fairly deep jurisprudence coming out of Section 8 of the Charter of Rights and Freedoms, where a REOP is determined in the context of the right to be secure against unreasonable search and seizure. And even in the context of the voyeurism offence, the SCC notes that the charging section includes a public good defence, again emphasizing the point that nuance will be required in conducting a REOP analysis in most cases. In short, context is critical as to whether there exists, in any particular scenario, a REOP, and whether the recording that is made offends that REOP. e SCC states: "For example, a person lying on a blan- ket in a public park would expect to be observed by other users of the park or to be captured incidentally in the background of other park-goers' photographs, but would retain an expectation that no one would use a telephoto lens to take photos up her skirt." e nuance that is so important to the SCC in this area of privacy law can also be seen in its response to the accused's argu- ment that the students were recorded by the school's video surveillance system, and therefore had no REOP: "is argument ignores the fact that not all forms of recording are equally intrusive. In particular, there are profound differ- ences between the effect on privacy result- ing from the school's security cameras and that resulting from Mr. Jarvis' recordings, and the students' expectation that they would be recorded by the school's security cameras tells us little about their privacy expectations with respect to the recording done by Mr. Jarvis. "e security cameras at the school were mounted to the walls near the ceiling inside the building and also to the outside of the building. ey did not record audio; the di- rection they pointed could not be manipu- lated by teachers; teachers could not access or copy the recorded footage for their per- sonal use; and the purpose of the cameras was to contribute to a safe and secure learn- ing environment for students. Signs at the school indicated that the school halls and grounds were under 24-hour camera sur- veillance: … Given ordinary expectations regarding video surveillance in places such as schools, the students would have reason- ably expected that they would be captured incidentally by security cameras in various locations at the school and that this foot- age of them could be viewed or reviewed by authorized persons for purposes related to safety and the protection of property. It does not follow from this that they would have reasonably expected that they would also be recorded at close range with a hid- den camera, let alone by a teacher for the teacher's purely private purposes … In part due to the technology used to make them, the videos made by Mr. Jarvis are far more intrusive than casual observation, security camera surveillance or other types of ob- servation or recording that would reason- ably be expected by people in most public places, and in particular, by students in a school environment." Put another way, while a number of sce- narios could easily be contemplated where a recording interferes with a person's REOP, the SCC also finds that all sorts of situa- tions of incidental recording would not: "In today's society, the ubiquity of visual recording technology and its use for a vari- ety of purposes mean that individuals rea- sonably expect that they may be incidentally photographed or video recorded in many situations in day-to-day life. For example, in- dividuals expect that they will be captured by video surveillance in certain locations, that they may be captured incidentally in the background of someone else's photo- graph or video, that they may be recorded as part of a cityscape, or that they may be recorded by the news media at the scene of a developing news story. In the school con- text, a student would expect that she might be captured incidentally in the background of another student's video, photographed by the yearbook photographer in a class setting, or videotaped by a teammate's parent while playing on the rugby team." BROAD IMPACT OF THE JARVIS DECISION e decision in the Jarvis case is important because the nine factors discussed above in the context of a REOP analysis will likely apply to all sorts of privacy cases (not just those in the Criminal Code). Moreover, what makes Jarvis timely is that cameras are being used in so many circumstances now in the public realm beyond the famil- iar use for security, and more is to come as tiny sensors and ultra miniature cam- eras proliferate in the "Internet of ings" world brought about by 5G technologies. In many of these non-security applications various types of "edge technologies" are also being deployed — that is, general images of the "public" are being taken in order to de- termine certain facts (i.e., how many peo- ple cross a certain intersection every hour), and then the images are deleted and only the aggregate "conclusions" derived from the images remain (in such applications it is then impossible to re-identify the aggre- gated data sets with the underlying people from which they are derived). While Jarvis does not give "bright line tests" for when, in such circumstances, a REOP exists (and when it does not), the multiple criteria in the case, and their thoughtful application in that decision, give good guidance on how users of these new and useful tech- nologies (and courts and agencies across the country) should approach the privacy questions they raise. George Takach is a senior partner at McCarthy Tétrault LLP and the author of Computer Law.