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Reasonable expectation of privacy depends on context: SCC

A recent Supreme Court of Canada (SCC) decision about privacy provides some important guidelines as invasive technology becomes more available, Ottawa criminal lawyer Céline Dostaler tells AdvocateDaily.com.

In the case, the SCC found a high school teacher guilty of voyeurism, says Dostaler, founder of Céline Dostaler Professional Corporation.

According to court documents, the teacher was in common areas of the school when he used a tiny camera concealed inside a pen to make surreptitious video recordings of female students, mostly focusing on their upper bodies.

“The videos he took, while holding the pen in the air, focused on the female students’ breasts in a very sexualized way,” says Dostaler who was not involved in the case and comments generally.

“It was from a point of view that you wouldn't necessarily see if you're just facing somebody, so it was very provocative,” she says.

According to the judgment, the teacher was acquitted at his first trial because the judge was not satisfied beyond a reasonable doubt that he made the recordings for a sexual purpose.

That acquittal was upheld by the Ontario Court of Appeal, which ruled that while the teacher made the videos for a sexual purpose, the students recorded were “not in circumstances that give rise to a reasonable expectation of privacy.”

The Crown appealed that finding “leaving it to the Supreme Court to determine what is a reasonable expectation of privacy,” Dostaler says.

In explaining its decision for finding the teacher guilty of voyeurism, she says the court reasoned that “privacy is not an all-or-nothing concept …. you have to look at the entire context to decide whether the circumstances give rise to a reasonable expectation of privacy.”

While many schools use cameras in the hallways as a security measure, Dostaler says the court found the type of video this teacher was shooting through his camera pen went well beyond what security cameras would capture.

“The students had a reasonable expectation of privacy regarding how their bodies would be observed in the classrooms and hallways of their school,” the judgment reads. “The focus of the recordings was on the young women’s intimate body parts, at close range … by surreptitiously recording images of their breasts, the accused infringed the sexual integrity of the students.”

“The court didn’t say privacy in a school environment is a given, but rather it found that it depends on the circumstances and what someone would reasonably expect in that situation, which was interesting to see,” Dostaler says.

She says she expects the judgment will be referenced in future cases involving spy cams and other forms of recording technology.

“The Supreme Court seemed to be looking into the future, to protect individuals from the use of technology that we might not necessarily expect to see,” Dostaler says.

In this case, she said students didn’t know they were being filmed by a teacher holding up a pen.

“Having your breasts videotaped at school in the hallway is not something that a teenaged student would expect,” Dostaler says.

She says the issue of privacy extends well beyond schools.

Dostaler gives the example of a patron in a strip club filming a performer on stage.

“The women do not think videos of them dancing will be published online,” she says.

“Though they are taking off their clothes, they still expect some privacy based on their body and for their sexual purpose,” Dostaler says.

“It's not simply that you work in a strip club and therefore have no expectation of privacy,” she says. “It goes further into looking at what would a reasonable person in that circumstance expect.”

Since almost everyone carries a cellphone with a camera built in, Dostaler says it’s certain the courts will see similar cases in the future.

“I think we're always surprised by how people try to use technology,” she says. “We're going to see more cases like this with the emergence of new and inexpensive technology.”

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