As our society develops with new technology, the Courts are often playing catch-up to evolving social norms, working to reconcile new circumstances or contexts to existing legal frameworks.
In the recent case of R v. Jarvis, the Supreme Court recently grappled with the issue of what constitutes a reasonable expectation of privacy. In this case, a high school teacher was found to have been surreptitiously recording female students, including their faces, bodies, cleavage or breasts using a pen camera. The question for the court was whether these videos were taken where the students enjoyed a reasonable expectation of privacy.
To the every day observer, this case seems like a bit of a no-brainer. Of course it is unacceptable to record a young person's breasts without their permission. The question, however, is whether or not the idea of the 'reasonable expectation of privacy' applies in the specific context in which these students found themselves. The accused argued that a reasonable expectation of privacy applies to circumstances in which a person has a reasonable expectation that she, or a part of her body, will not be observed by others. It is true that in the case of these students, they would expect to be observed while at school. The Crown, on the other hand, argued that this interpretation focuses too much on location and not enough on the context.
And as it turns out, the Supreme Court emphasized that context does indeed matter when assessing whether a person has a reasonable expectation of privacy. The Court listed a number of non-exhaustive considerations that might assist a court, which include:
- The location the person was in;
- The nature of the conduct (whether it is observing or recording);
- Awareness or consent to potential observation or recording;
- The manner in which the observation or recording was done;
- The subject matter or content of the observation or recording
- Any rules, regulations or policies that government the observation or recording in question;
- The relationship between the person who was observed or recorded and the person who did the observing or recording;
- The purpose for which the observation or recording was done;
- The personal attributes of the person who was observed or recorded.
The Court also found that context of s. 8 of the Charter, which guarantees the right to be free from unreasonable search and seizure, can also inform this analysis. In other words, whether or not a person has a reasonable expectation of privacy depends on social norms of what is acceptable in society. So, given the ever-increasing sophistication of recording devices and the fact that recording devices are ubiquitous these days, we need to be aware that a person does not simply waive their privacy interests the moment that they step into public.
Ultimately, the Court found that given the contextual factors of the recordings having been done of young persons, at school, where the teacher was in a position of trust, and where they did not consent or expect to be recorded, and where policies existed that prohibited such recording, that there was a breach of their reasonable expectations of privacy.
Through this framework, the Court came to the conclusion that many would. Again, it makes sense that just because a young person is in a public space that they give up their right to privacy. In reaching this conclusion, the Court did provide a more flexible approach to privacy that accounts for social norms and the context of the situation. Given that most people walk around with phones with recording capabilities, these contextual factors will be important as the courts will no doubt continue to consider the evolving nature of privacy and will perhaps result in a more nuanced approach.