What did you expect? Court's highly nuanced "expectation of privacy" analysis

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What did you expect? Supreme Court of Canada’s highly nuanced "expectation of privacy" analysis in R. v. Jarvis

February 20, 2019

By David Fraser, Privacy Lawyer | Partner at McInnes Cooper

On February 14, 2019, the Supreme Court of Canada decided yet another criminal law decision that will likely have broader ramifications for privacy law. In R. v. Jarvis, the Supreme Court of Canada builds on its criminal law decisions that developed the analysis of reasonable privacy expectations (including R. v. Cole, R. v. Vu, R. v. Fearon, and R. v. Spencer) with a highly nuanced, heavily contextualized framework for looking at whether there’s a reasonable expectation of privacy in the circumstances. And like those earlier cases, this decision won’t just inform other criminal cases in which an expectation of privacy is relevant (like the voyeurism offence that was the issue in this case); it will inform any situation that requires a look at a person’s expectations of privacy:

Privacy lawsuits & complaints. The decision will likely generate a more nuanced discussion about expectations of privacy in places that are generally public. This will likely inform court decisions in the context of civil privacy right lawsuits (like, for example, breach of privacy and “intrusion upon seclusion” claims). It could also inform Canada’s Office of the Privacy Commissioner’s assessment of the “appropriateness” of an organization’s collection, use or disclosure of personal under section 5(3) of the federal Personal Information and Protection of Electronic Documents Act (PIPEDA) in the context of a privacy complaint.

Business considerations. This means that businesses that collect, hold and distribute information about their customers, employees, or otherwise – such as employers that conduct surveillance in or outside of the workplace, or insurers that engage in surveillance of claimants – will need to consider more than merely whether their conduct complies with privacy legislation. They also need to consider the impact on their targets’ reasonable expectation of privacy more generally. And while this decision gives them a framework in which to do so, it’s one that’s highly contextualized and thus potentially tough to apply in any standardized way.

Target technology. The decision is also likely to force some hard thinking about the role of technology and its impact on privacy. Most would conclude the use of technology to conduct covert recording (as in this case) is at the most intrusive end of the spectrum. While the Court noted that recording is more intrusive than observation, and the target’s awareness or lack thereof is relevant, it’s not simply that what was recorded could be observed with bare eyes. Even “mere observation” with technology, like Closed Circuit Television (CCTV) cameras said to equate to real-time monitoring, such as retail loss-prevention monitoring, could be a breach of privacy depending on the technology or how it’s used. For example, having a retail store loss-prevention employee monitor an area around fitting rooms with hard-to-spot cameras is more privacy intrusive than doing so with obvious cameras, which in turn is more intrusive than posting an employee in that same area looking for shoplifters.

In R. v. Jarvis, a high school teacher used a covert, miniature camera to videotape young female students’ chests in otherwise “public areas” of the school (i.e., not in washrooms or changing rooms). Police charged him under the Criminal Code’s relatively new voyeurism offence, an essential element of which is that there must be circumstances giving rise to a reasonable expectation of privacy. The Supreme Court of Canada decided the accused was guilty. In the course of its decision, the Court laid out a highly nuanced, heavily contextualized framework for determining when and where a reasonable expectation of privacy exists:

Totality of circumstances. The Court confirmed that ultimately, the question in each case is whether there was a reasonable expectation of privacy in the “totality of the circumstances” (the broad test the Court articulated in its 2012 decision in R. v. Cole).

Contextual analysis. The Court also confirmed that the inquiry into the existence of a reasonable expectation of privacy is a contextual one: the factors that are relevant, and the weight each factor carries, will vary from case to case depending on the context.

Nine contextual factors. The Court continued to list and describe nine factors that courts should consider in deciding whether a person who was observed or recorded was in circumstances that gave rise to a reasonable expectation of privacy, emphasizing both that the list is non-exhaustive and that not every factor will necessarily be relevant in every case:

Where they were observed or recorded. For example, whether they were in a place from which they sought to exclude all others, felt confident they weren’t being observed, or expected to be observed only by a select group of people.
Whether it was observation or recording. A recording is more privacy-intrusive than mere observation, so a person could have differing expectations for each in different contexts.
Awareness of or consent to potential observation or recording. Secretive observation or recording could be indicative that it’s contrary to the norms for privacy and recording in the context – but it’s only one consideration and it can’t “overwhelm” the reasonable expectation of privacy analysis. Surreptitious observation or recording might not breach a reasonable expectation of privacy – and open observation or recording might breach it (though in a criminal case, surreptitious observation or recording might be an element of a specific offence).
The manner in which the observation or recording was done. For example, whether it fleeting or sustained, aided or enhanced by technology and if so, the type of technology. The Court noted judicial recognition of the potential impact of new and evolving technologies on privacy generally and the need to consider a technology’s capabilities in assessing whether its use breached reasonable expectations of privacy – and explicitly cautioned that peoples’ reasonable privacy expectations don’t necessarily contract as technology expands third parties’ ability to collect, hold and distribute their information.
The subject matter or content of the observation or recording. The nature and quality of the information, such as whether a specific person or group was targeted, their activity when observed or recorded, and the focus of the observation or recording.
Any rules, regulations or policies that governed the observation or recording. However, formal rules, regulations or policies aren’t necessarily determinative and their weight will vary with the context.
The relationship between the person observed or recorded and the person who did the observing or recording. For example, a relationship characterized by trust or authority and whether the observation or recording constituted a breach or abuse of the trust or authority that characterized the relationship.
The purpose for which the observation or recording was done. A person’s reasonable expectation of privacy with respect to information about them will vary depending on the purpose for which the information is collected (though in a criminal case, proof of a specific purpose beyond a reasonable doubt might be an element of a specific offence).
The personal attributes of the person observed or recorded. For example, their age, gender or vulnerabilities.

Please contact your McInnes Cooper lawyer or any member of the Privacy Law Team @ McInnes Cooper to discuss this topic or any other legal issue.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

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