By Nicole C. Krupski*
I. THE SCOPE OF PRIVACY
Canadians have always shared a strong interest in privacy, but how far does one’s privacy interest reach? We are in living in a time when rapid advancements in technology threaten Canadians’ privacy. R. v. Jarvis, a recent Supreme Court of Canada (“SCC”) decision rendered in February 2019, explored individual privacy rights in public places. The SCC’s decision means that Canadians will not simply be left to surrender their privacy rights as technology advances in the modern world.
II. R. v. JARVIS: A WIN FOR PRIVACY RIGHTS
Mr. Jarvis, a high school teacher, was charged with voyeurism under s. 162(1) of the Criminal Code. To secure a conviction, the Crown had to prove Mr. Jarvis, for a sexual purpose, surreptitiously observed or made a visual recording of another person “in circumstances that give rise to a reasonable expectation of privacy.”
In 2011, Mr. Jarvis was caught recording students using a small camera located in the top of a pen. The school principal observed Mr. Jarvis in class after receiving information from a fellow teacher who believed Mr. Jarvis was making secret recordings. It was twice-observed by the principal that Mr. Jarvis would stand near female students, holding up his pen that emitted a red light from the non-writing end. The pen was then seized and given to the police. It was determined that these recordings were made without the students’ knowledge while they were at school engaged in normal school activities. Most of the recordings were of female students, primarily focusing on their face and breasts. In particular, the footage singled out certain female students on multiple occasions, both in the classroom and hallways of the school.
Justice Goodman of the Ontario Superior Court of Justice, acquitted Mr. Jarvis at trial as Goodman J. could not find, beyond a reasonable doubt, that the videos were created for a sexual purpose. The Court of Appeal reversed this finding, holding that the videos were created for a sexual purpose, but still acquitted Mr. Jarvis since the videos were filmed while the students were in a public place (i.e. their school), negating their reasonable expectation of privacy. It was not until the case reached the SCC that Mr. Jarvis was convicted of the charge, and the definition of privacy grew a little broader.
III. THE BATTLE BETWEEN TECHNOLOGY AND PRIVACY RIGHTS
The majority found privacy interpretations of s. 8 of the Canadian Charter of Rights and Freedoms from cases as early as Hunter v. Southam Inc. to be instructive in their analysis for interpreting the Criminal Code provision. The Court used the Charter framework to inform their statutory interpretation of the phrase “circumstances that give rise to a reasonable expectation of privacy.” In this process they outlined a non-exhaustive list of factors to help courts:
1) the location the person was in when she was observed or recorded;
2) the nature of the impugned conduct (observation vs. recording);
3) consent to or awareness of potential observation or recording;
4) the manner in which the observation or recording was done;
5) the subject matter or content of the observation or recording;
6) any existing regulations or policies governing the observation or recording;
7) the relationship between the people involved;
8) the purpose for which the observation or recording was done; and
9) consideration of the personal attributes of the person recorded.
Instead of maintaining the location-based analysis employed by the Court of Appeal, the SCC went on to find that location is not central to the analysis: “simply because a person is in circumstances where she does not expect complete privacy does not mean that she waives all reasonable expectations of privacy.” In this sense, the majority departed from the lower court decision and emphasized that, even while in public, there is a great distinction between being viewed by strangers and being the subject of a visual recording. The Court stressed that technology played a huge role because of the greater potential impact of being able to preserve moments, allowing for more access, sharing, and manipulation than would otherwise be available through observation by the human eye.
While this decision demonstrates an instance of the law keeping pace with advancing technology, it fails to explicitly address a vital issue. Throughout the decision, the SCC offered many examples of when technology might be seen to invade the privacy of individuals—many of which were situations specifically focused on women. Increasing technological capabilities gives rise to new forms of abuse and it is important to be aware that women are disproportionately targeted by this sexual violence. It is unfortunate that the SCC did not take this opportunity to include gender as a factor for consideration to account for this inequality. Although personal attributes could be seen as encompassing consideration of gender, the description the SCC gave only included children or young persons for relevant contexts. While it may be that the SCC considered the inclusion of gender as an attribute was implicit, the decision would have benefited from a direct inclusion. Despite this missed opportunity to highlight women as more likely targets, the explicit indication by the SCC that the list was non-exhaustive may leave the door open for gender discussions in the future.
In the face of modern technology, increasing opportunities for privacy to be invaded, and greater risk of women becoming victims of new forms of sexual violence, the SCC has made a statement that Canadian’s privacy rights will not be eroded as technology evolves. The SCC has demonstrated it will not hold to rigid positions that do not give meaning to privacy rights afforded at law. Canadian’s privacy rights are no longer determined by location but instead will be analysed in the entire context of a situation. The Jarvis decision stands for the principle that, although public places traditionally preclude finding a reasonable expectation of privacy, the use of technology in these places permitting manipulation, editing, and preservation of recordings calls for an expanded contextual analysis of the reasonable expectation of privacy.
* JD Candidate (University of Saskatchewan).
 2019 SCC 10, 433 DLR (4th) 195 [Jarvis].
 RSC 1985, c C-46, s 162(1)(c).
 Jarvis, supra note 1at para 1.
 Ibid at para 7.
 Ibid at para 11.
 Ibid at para 10.
 Ibid at para 80.
 R v Jarvis, 2015 ONSC 6813 at paras 78-79, 25 CR (7th) 330.
 R v Jarvis, 2017 ONCA 778 at paras 110-11, 139 OR (3d) 754.
 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
  2 SCR 145, 1984 CanLII 33.
 Jarvis, supra note 1 at paras 55, 57. Note that while the concurring justices came to the same result as the majority, they did not agree that s. 8 of the Charter should be used to help instruct the scope of the Criminal Code (ibid at para 93).
 Ibid at para 29.
 Ibid at para 61.
 Ibid at para 74.
 Ibid at paras 31, 38-40.
 See generally Nicola Henry & Anastasia Powell, “Embodied Harms: Gender, Shame, and Technology-Facilitated Sexual Violence” (2015) 21:6 Violence Against Women 758.
 Jarvis, supra note 1 at para 29.
 A similar view on the missed opportunity to specifically include gender in the factors can be found in Patricia Hughes, “R. v. Jarvis: The Centrality of Technology” (19 February 2019), online (blog): Slaw <http://www.slaw.ca/2019/02/19/r-v-jarvis-the-centrality-of-technology>, archived: <https://perma.cc/EA4D-PTYF>.