Increasingly businesses (and employers) and public organizations deploy and use ever-improving surveillance technology, including workplace audio and video recording. Ontario law has remained vigilant and watchful, attempting to balance legitimately held privacy expectations for everyone against unreasonably invasive privacy intrusion, particularly to foster security, safety and legitimate business or public interests.
In an important, recent case, a teacher was accused of using a concealed camera to surreptitiously videotape female high school students engaging in “ordinary school-related activities in common areas” of the school. However, the evidence revealed the teacher was recording sexually based images, without audio recording. The school had posted signs notifying of the use of security cameras throughout the school. The school also had a policy prohibiting its teachers from making videos of students, or otherwise tampering with the school’s surveillance cameras. The teacher was charged with voyeurism under Canada’s Criminal Code, a sexually related offence.
The Supreme Court declared that privacy, particularly in a public or semi-private place, is not an all-or-nothing proposition in Canada. There can be no absolute expectation of privacy for anyone, at least not in a public, or semi-private, place. The specific circumstances must be considered, which determine what reasonable expectation of privacy should be legally protected in a contextualized approach.
A person can reasonably expect privacy in a public, or semi-public, place, particularly protection from sexually driven surveillance, but the specific expectation that will be legally protected must be determined by many factors, such as:
• the nature of the place and its location;
• the scope and nature of the conduct by the other party, such as observation or recording;
• whether the person subject to the conduct had consented to being so observed or recorded, at was even was aware of it;
• the manner in which the observation or recording was undertaken;
• the subject matter or content of the observation or recording;
• any applicable rules, policies or regulations that may prohibit or restrict that conduct;
• the nature of the relationship, if any, between the person being observed or recorded and the person engaging in the observation or recording;
• the reason for the observation or recording; and
• the characteristics of the person being observed or recorded, particularly if the person is a child, youth or a vulnerable person.
The teacher's conviction was upheld by Canada's highest Court. The Court concluded that the young, female students at the school had not consented to being recorded in such manner, or even been aware of him doing so. The teacher held a trust relationship with the students, which he violated, when he knew he was not allowed to make these video recordings of the students, particularly when it was sexually driven. The female students’ privacy had been violated in the circumstances.
However, the female students, in the circumstances, could not reasonably have expected to be protected absolutely from such misconduct by their teacher. Rather, the Court engaged in a contextual, multi-factored analysis.
Accordingly, no one can expect absolute protection, at least not by the criminal law, from being observed or recorded in public, even if it may be sexual in nature. Ultimately, the Supreme Court enshrined a case-by-case analysis, which may, or may not, offer the protection of, at least, Canada's criminal law.
Businesses, particularly employers, and other organizations need to have a clear policy prohibiting surreptitious observation and recording in their places of business, absent consent. They can also be held vicariously liable for improper, unwanted surveillance being conducted in their place of business, including public areas.
In addition to potential criminal charges for those who unlawfully observe or record others, including in public spaces, the offender could potentially be held liable civilly in Ontario, particularly for damages for breaching the tort of “intrusion upon seclusion”, or for violating other privacy law.
However, the Supreme Court’s decision in this case has clarified and shaped the law on a person’s reasonable expectation of privacy, particularly if that person is observed or recording in a public, or semi-private, place.
Ontario Courts and privacy regulators will also continue to review surveillance technology to ensure it is legitimately, justifiably and properly deployed and utilized, minimizing unreasonably invasive infringement on privacy expectation.
Surveillance cannot, of course, be prohibited – it benefits the public, if utilized appropriately and legally. However, whether surveillance exceeds the legal boundary by offending an individual’s reasonable expectation of privacy will depend on the specific circumstances and various factors, which will themselves continue to develop as ever-evolving surveillance technology continues to proliferate.
As technology becomes more subtle, sophisticated, accessible and ubiquitous, everyone must remain mindful that their privacy is not absolute and may be subject to observation, or even recording, particularly in public places.
Privacy is not an “all-or-nothing” right. Intrusion upon your seclusion should not be viewed as an inevitably necessary part of your rapidly changing modern life; rather, the law imposes limits which, if offended, may expose the offender to both criminal and civil liability. Privacy is not a lost expectation in our contemporary world, as skeptics contend, but only an evolving one, judiciously straining to keep pace with constantly changing and increasingly innovative technology.
R. v. Jarvis, 2019 SCC 10 (CanLII)