Pen Cameras, Privacy, and Schools
Students reasonably expecting not to be secretly videotaped in school for sexual purpose
The Supreme Court of Canada has elaborated on the voyeurism offence in section 162(1) of the Criminal Code with its decision in R v Jarvis. That provision makes it an offence to surreptitiously observe or record a person who is in circumstances that give rise to a reasonable expectation of privacy, including that the recording was done for a sexual purpose. In Jarvis itself, the accused was a teacher in a high school who had used a camera hidden in a pen to record video of female students, generally the breasts of students wearing tight fitting or low-cut clothing. The videos were recorded in the hallways, classrooms, cafeteria and grounds of the school. By the time the matter reached the Supreme Court, it was settled that the videos had been recorded surreptitiously and for a sexual purpose, and so the only issue was whether the students could be said to have a “reasonable expectation of privacy”. The Court concluded that they did, and therefore that the accused was guilty, and in the course of deciding that made important observations about the relationship between technology and privacy.
The Court’s conclusion rests on statutory interpretation of the phrase “circumstances that give rise to a reasonable expectation of privacy” in section 162(1), which the majority concluded meant “circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred”. That determination is to be made based on a number of factors, including the location, whether the conduct is observation or recording, whether the subject is aware of or has consented to potential observation or recording, the manner in which it was done, the subject matter, any rules or regulations governing the situation, the relationship between the observer and the observed, the purpose for which it was done, and the personal attributes of the person who was observed or recorded. In the context of this case, that meant that students who knew they were being observed by school surveillance cameras which had been installed for security purposes could nonetheless reasonably expect that they would not also be recorded by a teacher secretly recording video of their intimate body parts for sexual purposes.
In reaching that conclusion the majority of the Court relied on a number of considerations, including the problem to which the voyeurism offence was directed, Parliamentary reports at that time, and so on. In addition they held – over the objections of the minority – on principles arising from jurisprudence about section 8 of the Charter, the right to be free from unreasonable search and seizure, which is meant to protect a reasonable expectation of privacy. In particular they relied on the fact that privacy is meant to be assessed normatively, as the amount of privacy we are entitled to expect, rather than based on a risk analysis of the amount of privacy we can guarantee as a practical matter. They observed:
 Relatedly, the privacy jurisprudence recognizes the potential threat to privacy occasioned by new and evolving technologies more generally and the need to consider the capabilities of a technology in assessing whether reasonable expectations of privacy were breached by its use: see Wise, at pp. 534-35; Tessling, at para. 16; see also Alberta v. UFCW, Local 401, at paras. 20 and 27. As Voith J. observed in Rudiger, even where a permanent recording is not made, technology may allow a person to see or hear more acutely, thereby transforming what is “reasonably expected and intended to be a private setting” into a setting that is not: para. 98, see generally paras. 93-98. While evolving technologies may make it easier, as a matter of fact, for state agents or private individuals to glean, store and disseminate information about us, this does not necessarily mean that our reasonable expectations of privacy will correspondingly shrink.
Similarly they noted “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” (para 68).
Both the nature of the technology and that the accused was recording rather than simply observing were seen as important. The Court noted
…Recording has a greater potential impact on privacy than does mere observation, as a recording can be saved for long periods of time, replayed and studied at will, dramatically transformed with editing software, and shared with others — including others whom the subject of the recording would not have willingly allowed to observe her in the circumstances in which the recording was made. Indeed, in the case at bar, the recordings would have allowed Mr. Jarvis, by watching the videos he had made, to “observe” students in a manner that would otherwise be unimaginable. If Mr. Jarvis had attempted to stare at students’ breasts while standing directly beside them for long stretches of time, as he effectively could do by watching the recordings he made, it is inconceivable that the students would not have taken evasive action or that school authorities would not have been alerted to this behaviour earlier.
Similarly, noting that not all forms of recording are equally intrusive, they held “the students would have reasonably expected that they would be captured incidentally by security cameras in various locations at the school and that this footage of them could be viewed or reviewed by authorized persons for purposes related to safety and the protection of property. It does not follow from this that they would have reasonably expected that they would also be recorded at close range with a hidden camera” (para 76). Putting the emphasis from that point in a different way, the Court also observed that although their decision here was recognizing a form of privacy in public spaces, that did not prevent all recording in such places:
 In today’s society, the ubiquity of visual recording technology and its use for a variety of purposes mean that individuals reasonably expect that they may be incidentally photographed or video recorded in many situations in day-to-day life. For example, individuals expect that they will be captured by video surveillance in certain locations, that they may be captured incidentally in the background of someone else’s photograph or video, that they may be recorded as part of a cityscape, or that they may be recorded by the news media at the scene of a developing news story. In the school context, a student would expect that she might be captured incidentally in the background of another student’s video, photographed by the yearbook photographer in a class setting, or videotaped by a teammate’s parent while playing on the rugby team.
A further element about the voyeurism offence which has been ambiguous is the requirement that the observation or recording be “surreptitious”. The meaning of this term was an issue in R v Lebenfish, where the accused was openly taking pictures of other people present on a nude beach, but without their knowledge. The debate there was more or less between the views that the accused’s behaviour was not surreptitious because he did not try to hide that he was taking photographs, or that it was surreptitious because the people being photographed were unaware of that fact. The trial judge acquitted by taking a photographer-centric interpretation as opposed to a subject-centric approach. Jarvis might, on the face of it, suggest that the subject-centric approach is the more appropriate one. On the other hand one might equally argue that those concerns are now adequately dealt with by the “reasonable expectation of privacy” analysis in the offence, and therefore that the “surreptitious” analysis should focus on different concerns.