Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
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22 LEXPERT MAGAZINE | MARCH 2019 At trial, the accused was acquitted be- cause the judge held that it was not cer- tain the teacher made the recordings for a sexual purpose. e Ontario Court of Ap- peal, although it overturned this portion of the trial decision, nevertheless confirmed the acquittal on the basis that students in a school hallway did not have a REOP, given that other students would be able to see them in the same school hallways, and moreover they knew they were being re- corded by the school's security cameras. e SCC disagreed with the trial judge, and found there was a sexual purpose for the recording, and also disagreed with the OCA, finding that the students were en- titled to a REOP, hence the SCC found the accused guilty. REASONABLE EXPECTATION OF PRIVACY In coming to its conclusion, the six-mem- ber majority of the SCC (in a decision writ- ten by the Chief Justice; a concurring deci- sion of three justices was not as expansive as the majority) articulated a sophisticated, non-exhaustive list of considerations that could assist a court in determining whether Reasonable expectations of privacy after the Jarvis case a person is recorded in circumstances that give rise to a REOP: e location where the person was record- ed — clearly if at home, or in a washroom, the location would raise a REOP; but the SCC went on to propose a number of more "public settings" where a REOP could be made out as well — thus, the important threshold point that a pub- lic setting does not automatically defeat a finding of a REOP; Recordings are more intrusive than ob- servations — a recording might involve a zoom feature, a close up, in other words more detail — and a recording means there is a capture of the images, from which edit- ing and distribution may follow; Whether the subject is aware of, or in- deed consents to, the recording; e manner in which the recording was done — less problematic if fleeting, more so if sustained, and whether enhanced by technology; e subject matter of the recording — Being Watched, Being Filmed In February of this year, the Supreme Court of Canada issued an important de- cision involving privacy law, particularly as it relates to video recordings in public plac- es. In R. v. Jarvis, 2019 SCC 10, the SCC considered whether a high school teacher violated Section 162(1) of the Criminal Code when he used a "pen camera" to make recordings of students in public places in his school. But the really important parts of the decision relate to the analysis that the majority of the Court undertakes of the concept of the "reasonable expectation of privacy" ("REOP") — a doctrine central to Canadian privacy law. VOYEURISM Under Section 162(1)(c) of the Criminal Code, it is an offence to surreptitiously make a visual recording of a person who is in circumstances that give rise to a reason- able expectation of privacy if the recording is done for a sexual purpose. In the facts of this case, the teacher had a miniature camera in a pen, such that female students didn't know he was making recordings of them, particularly of their chests. COLUMNS TECHNOLOGY PHOTO: SHUTTERSTOCK By George Takach TECHNOLOGY COLUMNIST