Employment & Labour

Criminal case offers lessons on workplace privacy

By AdvocateDaily.com Staff

A criminal decision by the Supreme Court of Canada (SCC) offers valuable guidance to both employers and employees about workplace privacy, Toronto labour and employment lawyer Christopher Achkar tells AdvocateDaily.com.

All nine judges of the top court agreed that a former high school teacher should be convicted of voyeurism after using a pen-mounted camera to secretly record the faces and breasts of his female students.

Although the case was about a criminal matter, Achkar, founder of Achkar Law, says the court’s analysis on the circumstances under which a reasonable expectation of privacy will arise extends well beyond the criminal sphere.

“Recording at the workplace has been a serious problem for a long time, and will remain a problem,” he says. “There are lessons in this case that can easily be applied to every single workplace.”

In general, Achkar says employees should refrain from recording colleagues without their permission.

“You certainly shouldn’t record for sexual or other inappropriate reasons,” he says. “But you also shouldn’t record interactions, thinking you’re being smart about it, because it can land you in trouble.”

Achkar explains that workers with genuine concerns are often tempted to take matters into their own hands by collecting video or audio evidence secretly. However, he warns such efforts are likely to backfire.

“It’s up to a judge to decide whether a recording was made legally, but it may not look good if the employer can show it was made as part of some sort of bait-and-switch situation. It may even form grounds for termination,” Achkar says. “If you’re scared about something, then it’s better to speak to a friend, a supervisor or a lawyer about it.”

The criminal case made its way to the Supreme Court after a split decision by the Ontario Court of Appeal (OCA), which ruled by a 2-1 majority in favour of acquitting the teacher.

All three OCA judges disagreed with the trial judge who had cleared him on the basis that there was a reasonable doubt over whether the recordings had been made for a sexual purpose — one of two essential elements of the crime of voyeurism.

The majority, however, found the Crown’s case faltered on the second pillar of the offence because the public nature of the school hallways and classrooms where the incidents took place did not give rise to a reasonable expectation of privacy.

But the SCC unanimously disagreed, siding with the dissenting judge at the OCA who would have convicted the teacher.

“In this case, when the entire context is considered, there can be no doubt that the students’ circumstances give rise to a reasonable expectation that they would not be recorded in the manner they were,” Chief Justice Richard Wagner wrote on behalf of the SCC panel.

“They were recorded by their teacher in breach of the relationship of trust that exists between teachers and students as well as in contravention of a formal school board policy that prohibited such recording. Significantly, the videos had as their predominant focus the bodies of students, particularly their breasts. In recording these videos, the accused acted contrary to the reasonable expectations of privacy that would be held by persons in the circumstances of the students when they were recorded.”

Achkar says he was glad to see the nation’s top court impose a conviction.

“The panel’s decision put the focus on the reasons for the recording, which is extremely important,” he says. “This is a step in the right direction.”

The judgment then went on to detail a non-exhaustive list of considerations for judges to determine under what circumstances a reasonable expectation of privacy will arise:

  • Location of the person observed or recorded
  • Nature of the impugned conduct
  • Awareness and possible consent of the person observed or recorded
  • Manner of observation or recording
  • Subject matter of the observation or recording
  • Rules, regulations or policies governing the observation or recording
  • Relationship between the subject and the person observing or recording
  • Purpose for which the observation or recording was made
  • Personal attributes of the person observed or recorded

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