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Supreme Court decision offers privacy lessons to condos

A Supreme Court of Canada (SCC) criminal decision offers important guidance to condos that monitor their property with video surveillance, Toronto condominium lawyer Joel Berkovitz 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.

But Berkovitz, a lawyer with Shibley Righton LLP, says it's the court’s lengthy consideration of the circumstances under which a reasonable expectation of privacy will arise that is most valuable to condo boards and their advisers.

“I think it really supports many of the best practices that people have been advocating with respect to video surveillance and how it should be undertaken on condo property,” he says. “If condos are going to use cameras, it’s valuable to have a written policy on the subject. Setting out the rules in writing will protect you if someone comes along alleging a violation of their privacy.”

The 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 appeal court judges disagreed with a trial judge who had cleared the man 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.

However, the OCA majority found the Crown’s case faltered on the second pillar of the offence because the public nature of the school's 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 Court of Appeal 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.”

The decision also talked about the expectation of privacy in "public" places, including changing rooms and washrooms. “These examples illustrate that 'privacy,' as ordinarily understood, is not an all-or-nothing concept. Furthermore, being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording."

The SCC went on to detail a non-exhaustive list of considerations for judges tasked with determining whether subjects have a reasonable right to privacy. While not all apply to the condo law realm, Berkovitz identifies a few that are most pertinent for his clients:

  • Location of the person when observed or recorded: “It’s pretty rational to assume that when you’re on condo property that is publicly accessible, that you can expect to be observed,” Berkovitz says.
  • The awareness or possible consent of the person observed or recorded: “We always tell condos that if they’re using video-recording equipment in particular areas, that they should make people aware by posting signage,” he says. “If there’s a camera in the party room, they might want to make that disclosure in the rental form so that people are aware when they book it.”
  • The subject matter or content of the observation or recording: “The court warns that you can invade a person’s privacy if you target recordings at specific individuals or times, so a camera that is pointed at someone’s unit could be offside,” Berkovitz says. “But full-time recording of most areas of the common elements is probably not going to offend privacy rights.”
  • Rules, regulations or policies governing the observation or recording: “This is why it’s so important that you have appropriate policies regarding who can view recordings, how it’s stored, for how long, and what use can be made of the footage,” he says. “It’s one thing to record a person, but quite another to use the recording for a specific purpose, and that’s usually where problems arise.”

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