February 22, 2019 by Greg Meckbach
If your client is sued for breach of privacy, the judge could look to last week’s voyeurism ruling by the Supreme Court of Canada for guidance, a privacy lawyer suggests.
In R. v. Jarvis, released Feb. 14, the Supreme Court of Canada convicted Ryan Jarvis of criminal voyeurism for surreptitiously filming students at Beal Secondary School in London, Ont.
But the Jarvis ruling can also influence non-criminal cases that have nothing to do with voyeurism because much of the decision discussed the concept of reasonable expectation of privacy.
“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),” wrote David Fraser, privacy lawyer for McInnes Cooper, in an article published Wednesday on CanLII Connects.
“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,” added Fraser.
The new tort of intrusion upon seclusion is significant for cyber insurers because plaintiffs do not have to prove they suffered economic loss if their personal information is compromised. A major Canadian bank, for example, settled an intrusion upon seclusion lawsuit by paying 138 identity victims about $7,000 each, law firm Fogler Rubinoff reported earlier.
Jarvis, who taught English at Beal, was acquitted in 2015 of voyeurism by the Ontario Superior Court of Justice. On several occasions he filmed high school students using a camera concealed in a pen. The trial judge allowed for the possibility that the videos made in 2010 and 2011 may not have had a sexual purpose, despite the focus of many of those videos on students’ cleavage. The crown appealed and initially lost. The majority of Court of Appeal for Ontario judges hearing the crown appeal accepted the defence argument that the girls being filmed had no reasonable expectation of privacy because they were in common areas of the school while he was filming them.
The Supreme Court disagreed, ruling the students who Jarvis filmed did have a reasonable expectation of privacy.
The criminal offence with which Jarvis is now convicted prohibits one from surreptitiously making a visual recording of a “person who is in circumstances that give rise to a reasonable expectation of privacy,” if the person being recorded is nude or if the recording is done for a sexual purpose.
“The decision will likely generate a more nuanced discussion about expectations of privacy in places that are generally public,” Fraser wrote in his CanLII blog.
“Whether a person can reasonably expect not to be the subject of a particular type of observation or recording cannot be determined simply on the basis of whether there was a risk that the person would be observed or recorded,” Supreme Court of Canada Chief Justice Richard Wagner wrote in Jarvis. “The development of new recording technology, and its increasing availability on the retail market, may mean that individuals come to fear that they are being recorded by hidden cameras in situations where such recording was previously impossible; however, it does not follow that individuals thereby waive expectations of privacy in relation to such recording or that retaining such an expectation becomes unreasonable.”
The federal privacy commissioner had intervenor status in Jarvis. Lawyers for the commissioner urged the Supreme Court to focus on more than location when ruling on the concept of reasonable expectation of privacy. What the Supreme court says in Jarvis about people’s privacy rights in public areas “will likely influence the scope of privacy rights in non-criminal contexts,” lawyers for the Office of the Privacy Commissioner of Canada wrote in their factum.
The Jarvis ruling could guide the privacy commissioner on whether it is appropriate for an organization to collect, use or disclosure of personal information, Fraser suggested in his CanLII Connects article.
Writing for the majority in Jarvis, Chief Justice Wagner gave several considerations for judges who are trying to determine whether a person being observed or recorded has a reasonable expectation of privacy. One is whether there is a relationship of trust or authority. Another is whether the person is in a location in which he or she sought to exclude others or felt confident that he or she is not being observed.
“Relevant considerations may include whether the observation or recording was fleeting or sustained, whether it was aided or enhanced by technology and, if so, what type of technology was used,” Justice Wagner wrote.