On August 27th, 2019 former Ontario school teacher Ryan Jarvis was sentenced to six months in jail and 12 months’ probation after the Supreme Court of Canada (“SCC”) convicted him of voyeurism earlier this year.  Although this is a criminal decision, it is nevertheless instructive for employers as the decision clarified the law relating to private versus public places, in particular an individual’s expectation of privacy. The decision also demonstrates how workplace policies, which clearly outline ‎objectionable conduct, assist employers in setting workplace standards and ‎expectations.‎

Background

Jarvis was a high school English teacher in London, Ontario. In 2011, a colleague reported that Jarvis was secretly recording students with a pen camera. The principal observed Jarvis with his pen and secured the device for police.

The device contained 35 video files, recorded over a six month period. The videos featured 27 female students between the ages of 14 and 18, engaged in conversations with Jarvis. The students were largely seated in classrooms at the time they were recorded, wearing revealing tops, with the videos recorded at downward angles.

Voyeurism under the Criminal Code

Jarvis was charged with 27 counts of voyeurism. Voyeurism, a comparably new sexual offence under the Criminal Code, required the Crown to establish that:

1. the visual recordings were made secretly;
2. the students’ circumstances gave rise to a reasonable expectation of privacy; and
3. the recording was done for a sexual purpose.

It was not disputed that the recordings were made secretly. However, the Superior Court was not satisfied that Jarvis made the recordings for a sexual purpose, indicating that other inferences could be drawn. Conversely, the Court of Appeal found that the videos were clearly made for a sexual purpose but the students did not have a reasonable expectation of privacy when in common areas of a school.

Supreme Court of Canada

The SCC found that a person does not lose all expectations of privacy simply because they are in a place where they know they can be observed by others or from which they cannot exclude others. Rather, the entire context must be considered to determine if a reasonable expectation of privacy arises, including:

1. awareness of or consent to the observation or recording;
2. the subject matter, content, and purpose of the observation or recording;
3. the relationship between the person observed and the person who did the observing or recording;
4. any rules, regulations or policies that governed the observation or recording in question; and
5. the personal attributes of the person who was observed or recorded.

While the students were in school common areas at the time they were video-recorded, they were teenagers, and were recorded by their teacher in breach of the relationship of trust and in breach of school board policy. The videos targeted females, were at close range, and focused particularly on the students’ breasts.

When considering the entire context, the SCC found that there could be no doubt that the students’ circumstances gave rise to a reasonable expectation that they would not be recorded as they were.

Lesson from the school board

This case was the first occasion the SCC had to interpret the offence of voyeurism. In doing so, the SCC clarified the common law in relation to reasonable expectations of privacy.

Given advancements in and ease of access to recording technologies, privacy may be present even outside of normally private locations (for instance homes or bathrooms), as circumstances may give rise to a reasonable expectation of privacy in more public locations such as schools, shopping centres, or workplaces, depending on all of the relevant circumstances. It follows from the SCC decision that privacy is not an “all or nothing” concept — some activities in what would otherwise be considered a public place may constitute a breach of privacy. Also, individuals may have an expectation of privacy with respect to some activities, but not necessarily all activities.

Importantly, in this case the school board had a strict workplace policy that prohibited Jarvis’ conduct and this contributed to the finding that students had an expectation of privacy insofar as they had a reasonable expectation that they would not be photographed in this manner by a teacher. Well-drafted workplace policies prohibiting objectionable conduct may not only assist employers in setting workplace standards and expectations (and thus prevent many problems from arising) but also help to reduce an employer’s risk exposure should wrongful conduct occur in the workplace.

By Tamara Hunter and Christina Badgley, DLA Piper