Civil Litigation

Criminal voyeurism decision provides guidance for civil privacy actions

By AdvocateDaily.com Staff

A Supreme Court of Canada (SCC) decision on the crime of voyeurism has important implications for civil privacy actions, Toronto senior litigation lawyer Jeffrey Silver tells AdvocateDaily.com.

All nine judges on the top court panel 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 this case deals with a Criminal Code offence, the reasons go into considerable detail on how to define privacy and the reasonable expectation of privacy in various circumstances,” says Silver, principal of Jeffrey C. Silver Barrister.

“This case is going to be very important and relevant when considering civil causes of action dealing with privacy and the tort of intrusion upon seclusion,” which was recognized for the first time in a landmark 2012 Ontario Court of Appeal (OCA) decision concerning a bank employee who repeatedly accessed the account records of a colleague who became romantically involved with the woman's former spouse, Silver adds.

Of particular importance is the court’s recognition that invasions of privacy can occur in a public or semi-public place, and that recordings are more invasive than an observation, he explains.

The case made its way to the SCC after a split decision by the OCA, which ruled by a 2-1 majority in favour of acquitting the teacher.

All three appeal court judges disagreed with a trial judge who had cleared him on the basis that there was reasonable doubt over whether the recordings had been made for a sexual purpose — one of two essential elements of the crime of voyeurism. However, the majority found the Crown’s case faltered on the second pillar of the offence because the public nature of the school hallways and classrooms in which the incidents took place did not give rise to a reasonable expectation of privacy.

However, 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 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,” Wagner wrote.

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. Silver says the guidance will be valuable for civil claimants and defendants.

The list includes:

  • Location of the person observed or recorded. “If it’s a private place, there is going to be a higher expectation of privacy, but being in a public place does not negate the interest in privacy,” Silver says
  • The nature of the impugned conduct. “The court says a recording will generally be more intrusive than a mere observation,” he says
  • The awareness and possible consent of the person observed or recorded
  • The manner of observation or recording. “If it’s done over a sustained period, as opposed to a fleeting observation or quick recording, that’s going to have an impact,” Silver says
  • The subject matter of the observation or recording. “This is about what the person was doing at the time, the part of their body observed, and whether or not they were specifically targeted, or part of a group,” he says
  • Rules, regulations or policies governing the observation or recording
  • The relationship between the subject and the person observing or recording. “In this case, the teacher was in a position of trust and authority over the students, who would reasonably expect him not to abuse that position,” Silver says
  • The purpose for which the observation or recording was made
  • The personal attributes of the person observed or recorded. “When the person is a child or vulnerable, the expectations will be different,” he says

While acknowledging the difficulty of defining privacy, the court also set out a number of examples to illustrate where the line may be crossed by observers, and demonstrating that it’s not “an all-or-nothing concept.”

For example, individuals undressing in a communal changing room may expect to be observed in various stages of undress incidentally by others nearby but will retain some expectation of privacy. A violation could occur if someone outside the changing room was able to view or record them via a one-way mirror or concealed camera, Wagner wrote.

“One can think of other examples where a person would continue to expect some degree of privacy, as that concept is ordinarily understood, while knowing that she could be viewed or even recorded by others in a public place. For example, a person lying on a blanket in a public park would expect to be observed by other users of the park or to be captured incidentally in the background of other park-goers’ photographs, but would retain an expectation that no one would use a telephoto lens to take photos up her skirt,” he added.

“The use of a cell phone to capture upskirt images of women on public transit, the use of a drone to take high-resolution photographs of unsuspecting sunbathers at a public swimming pool, and the surreptitious video recording of a woman breastfeeding in a quiet corner of a coffee shop would all raise similar privacy concerns,” Wagner wrote.

“In general, people need to be more careful of where they are taking pictures,” Silver says. “If you’re at the beach, and you want to start taking pictures of sunbathers, there may very well be an invasion of privacy given the factors listed by the Supreme Court, and it could lead to a civil action.”

Still, he says the extent of any recovery of damages will depend on what is done with the photographs or recordings.

“If you’re posting them on the internet or making them public in some other way, that's obviously going to cause more embarrassment and stress to the person than if you keep them to yourself,” Silver says.

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