Her Majesty The Queen Appellant v. Ryan Jarvis, 2019 SCC 10

SUPREME COURT OF CANADA Citation: R. v .

Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488 Appeal Heard: April 20, 2018 Judgment Rendered: February 14, 2019 Docket: 37833 Between: Her Majesty The Queen Appellant and Ryan Jarvis Respondent - and - Attorney General of British Columbia, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Privacy Commissioner of Canada, Canadian Civil Liberties Association, Ontario College of Teachers, Information and Privacy Commissioner of Ontario, Women’s Legal Education and Action Fund Inc. and Criminal Lawyers’ Association (Ontario) Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.

Reasons for Judgment: (paras. 1 to 92) Wagner C.J. (Abella, Moldaver, Karakatsanis, Gascon and Martin JJ. concurring) Concurring Reasons: (paras. 93 to 148) Rowe J. (Côté and Brown JJ. concurring) R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488

Her Majesty The Queen Appellant v. Ryan Jarvis Respondent and Attorney General of British Columbia, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Privacy Commissioner of Canada, Canadian Civil Liberties Association, Ontario College of Teachers, Information and Privacy Commissioner of Ontario, Women’s Legal Education and Action Fund Inc. and Criminal Lawyers’ Association (Ontario) Interveners Indexed as: R. v. Jarvis 2019 SCC 10 File No.: 37833. 2018: April 20; 2019: February 14.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. on appeal from the court of appeal for ontario Criminal law — Voyeurism — Elements of the offence — Circumstances that give rise to reasonable expectation of privacy — Accused teacher using concealed camera to make surreptitious video recordings of female high school students engaging in ordinary school-related activities in common areas of school — Most video recordings focusing on faces, upper bodies and breasts of students — Students not aware of recording — Accused charged with voyeurism — Whether students recorded by accused were in circumstances giving rise to reasonable expectation of privacy — Criminal Code, R.S.C. 1985, c.

C-46, s. 162(1) . The accused was an English teacher at a high school. He used a camera concealed inside a pen to make surreptitious video recordings of female students while they were engaged in ordinary school-related activities in common areas of the school. Most of the videos focused on the faces, upper bodies and breasts of female students. The students were not aware that they were being recorded by the accused, nor did they consent to the recordings. A school board policy in effect at the relevant time prohibited the type of conduct engaged in by the accused.

The accused was charged with voyeurism under s. 162(1) (

c) of the Criminal Code . That offence is committed where a person surreptitiously observes or makes a visual recording of another person who is in circumstances that give rise to a reasonable expectation of privacy, if the observation or recording is done for a sexual purpose. At trial, the accused admitted he had surreptitiously made the video recordings. As a result, only two questions remained: whether the students the accused had recorded were in circumstances that give rise to a reasonable expectation of privacy, and whether the accused made the recordings for a sexual purpose.

While the trial judge answered the first question in the affirmative, he acquitted the accused because he was not satisfied that the recordings were made for a sexual purpose. The Court of Appeal unanimously concluded that the trial judge had erred in law in failing to find that the accused made the recordings for a sexual purpose. Nevertheless, a majority of the Court of Appeal upheld the accused’s acquittal on the basis that the trial judge had also erred in finding that the students were in circumstances that give rise to a reasonable expectation of privacy.

The Crown appeals to the Court as of right on the issue of whether the students recorded by the accused were in circumstances that give rise to a reasonable expectation of privacy. Held : The appeal should be allowed and a conviction entered. Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon and Martin JJ.: The students recorded by the accused were in circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code .

Circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code are circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred. The inquiry should take into account the entire context in which the impugned observation or recording took place.

Relevant considerations may include (1) the location the person was in when she was observed or recorded, (2) the nature of the impugned conduct (whether it consisted of observation or recording), (3) awareness of or consent to potential observation or recording, (4) the manner in which the observation or recording was done, (5) the subject matter or content of the observation or recording, (6) any rules, regulations or policies that governed the observation or recording in question, (7) the relationship between the person who was observed or recorded and the person who did the observing or recording, (8) the purpose for which the observation or recording was done, and (9) the personal attributes of the person who was observed or recorded.

This list of considerations is not exhaustive and not every consideration will be relevant in every case.

The fact that it is an element of the offence in s. 162(1)(

c) that observation or recording be done for a sexual purpose does not make it inappropriate to consider the purpose of the observation or recording in assessing whether it was done in breach of a reasonable expectation of privacy. In some cases, observation or recording may not breach expectations of privacy despite having a sexual purpose. In other cases, observation or recording may be an obvious breach of privacy regardless of its purpose and it can ground a conviction under s. 162(1) if the other elements of the offence are made out.

Similarly, although the surreptitiousness of the observation or recording is an element of the offence in s. 162(1) , this does not mean that it can never be considered in assessing whether the person who was observed or recorded had a reasonable expectation of privacy. “Privacy”, as ordinarily understood, is not an all-or-nothing concept, and being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording.

Rather, whether observation or recording would generally be regarded as an invasion of privacy depends on a variety of factors, which may include a person’s location, the form of the alleged invasion of privacy, the nature of the observation or recording, the activity in which a person is engaged when observed or recorded and the part of a person’s body that is the focus of the recording.

The fact that a variety of factors may influence whether a person would expect not to be observed or recorded is also consistent with Parliament’s choice to express the element of the offence by reference to the “circumstances” that give rise to a reasonable expectation of privacy. Had Parliament intended to limit the types of circumstances that can be considered, it would have done so expressly.

The immediate statutory context of the words “circumstances that give rise to a reasonable expectation of privacy” lends further support to the view that this element of the offence is not governed solely or primarily by a person’s physical location and does not limit the commission of the offence to traditionally private spaces. Paragraph (

a) of s. 162(1) expressly circumscribes the scope of the prohibited observation or recording by reference to location and it would be incongruous with that paragraph to read the requirement that the person who is observed or recorded be in circumstances that give rise to a reasonable expectation of privacy as also being governed by location. Furthermore, the inclusion of paras. (

b) and (

c) in s. 162(1) indicates that Parliament understood that a person could have a reasonable expectation of privacy somewhere other than in a place where nudity or explicit sexual activity can reasonably be expected or is in fact taking place. Parliament’s object in enacting the voyeurism offence was to protect individuals’ privacy and sexual integrity, particularly from new threats posed by the abuse of evolving technologies.

Reading the expression “circumstances that give rise to a reasonable expectation of privacy” narrowly would undermine Parliament’s intention that the offence prohibit surreptitious observation or visual recording that amounts to sexual exploitation or that represents the most egregious breaches of privacy. The jurisprudence pertaining to s. 8 of the Canadian Charter of Rights and Freedoms is also instructive in interpreting s. 162(1).

Parliament must be understood has having chosen the words “reasonable expectation of privacy” in s. 162(1) purposefully and with the intention that the existing jurisprudence on this concept would inform the content and meaning of those words. In addition, the s. 8 case law represents a rich body of judicial thought on the meaning of privacy in our society. Far from being unmoored from our ordinary perceptions of when privacy can be expected, judgments about privacy expectations in the s. 8 context are informed by our fundamental shared ideals about privacy as well as our everyday experiences.

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. In particular, the subjects of the video recordings were teenage students at a high school. 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. Per Côté, Brown and Rowe JJ.: There is agreement that the students in this case were in circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code . However, s. 8 Charter jurisprudence should not inform the

interpretation of s. 162(1). First, the conceptual framework for defining Charter rights should remain distinct from that used to define the scope of Criminal Code offences. To interpret the wording in s. 162(1) by reference to the s. 8 jurisprudence would put the judiciary in the position of creating new common law offences, despite their abolition by s. 9 (

a) of the Criminal Code .

Section 8 Charter jurisprudence evolves but the meaning in s. 162(1) is intended to remain fixed as of the time of its enactment. Second, the purpose and function of s. 8 and s. 162(1) are fundamentally at odds. The power imbalance of the police as agents of the state vis-à-vis a citizen that is at the heart of the preoccupation under s. 8 is not present under s. 162(1), as that provision protects invasions of privacy perpetrated by one individual against another.

Third, the interests protected by s. 8 of the Charter include personal privacy, territorial privacy and informational privacy, whereas the reasonable expectation of privacy under s. 162(1) relates only to the protection of one’s physical image. Finally, Charter values are a legitimate interpretive aid only in cases of ambiguity, and in this case, s. 162(1) is not legally ambiguous. A multi-factored test to decide whether there is a reasonable expectation of privacy in the context of s. 162(1) should not be adopted.

The offence of voyeurism is an extension of the criminal law to protect well-established interests of privacy, autonomy and sexual integrity in light of threats posed by new technologies that encroach upon them. Because voyeurism is a sexual offence, a reasonable expectation of privacy in the context of s. 162(1) should be interpreted in light of the harms contemplated in related provisions in the scheme for sexual offences in

Part V of the Criminal Code . In the context of the voyeurism offence, “privacy” should be interpreted with regard to personal autonomy and sexual integrity. An individual’s privacy interest under s. 162(1) can only be infringed if they are recorded or observed in a way that both causes them to lose control over their image and also infringes their sexual integrity. This conjunctive test accords with what Parliament sought to protect by creating the offence. The ability to maintain control over what personal visual information is shared, and with whom, is a facet of privacy linked to personal autonomy.

While the surreptitiousness of the observation or recording may signal circumstances that give rise to a reasonable expectation of privacy, the two elements remain distinct. The surreptitiousness of the observation or recording improperly removes the individual’s ability to maintain control over how they are observed, and, because of its permanence, a recording compounds the denial of the subject’s autonomy by giving the voyeur repeated access to the observations.

Whether the observation or recording is sexual in nature such that it infringes the sexual integrity of the subject should bedecided on an objective standard and considered in light of all the circumstances. While the intent of the perpetrator may be relevant, it isnot determinative. The sexual purpose inquiry under para. (

c) of s. 162(1) is distinct from the determination of a violation of sexualintegrity under the reasonable expectation of privacy analysis. An observation or recording will be done for a sexual purpose where thesubject of the observation or recording is reasonably perceived as intended to cause sexual stimulation in the observer. An

interpretationof sexual purpose that includes sexual gratification is consistent with the

interpretation of the same phrase in other sections of theCriminal Code. In this case, the students had a reasonable expectation of privacy regarding how their bodies would be observed in theclassrooms and hallways of their school. The visual information was subject to their limitation and control, and the technology used bythe accused allowed him to take videos of the clothed breasts of his students — for extended periods of time — in angles and inproximity that went beyond the access that the students allowed in this setting, thus infringing their autonomy. The recordings were alsoobjectively sexual in nature.

The focus of the recordings was on the young women’s intimate body parts, at close range. In addition, andwhile not determinative, the recordings were made for a sexual purpose. The combination of these factors leads to the conclusion that bysurreptitiously recording images of their breasts, the accused infringed the sexual integrity of the students. Cases Cited By Wagner C.J. Referred to: R. v. Rudiger, 2011 BCSC 1397, 244 C.R.R. (2d) 69; Rizzo & Rizzo Shoes Ltd. (Re), (SCC),[1998] 1 S.C.R. 27; R. v. Dyment, (SCC), [1988] 2 S.C.R. 417; Dagg v. Canada (Minister of Finance), (SCC), [1997] 2 S.C.R. 403; R. v.

Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; Hunter v. Southam Inc., (SCC), [1984] 2S.C.R. 145; Srivastava v. Hindu Mission of Canada (Québec) Inc., (QC CA), [2001] R.J.Q. 1111; R. v. Plant, (SCC), [1993] 3 S.C.R. 281; R. v. Duarte, (SCC), [1990] 1 S.C.R. 30; R. v. Cole, 2012 SCC 53, [2012] 3S.C.R. 34; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. Tessling, 2004 SCC67, [2004] 3 S.C.R. 432; R. v. Edwards, (SCC), [1996] 1 S.C.R. 128; Schreiber v. Canada (Attorney General), (SCC), [1998] 1 S.C.R. 841; R. v. Wong, (SCC), [1990] 3 S.C.R. 36; R. v.

Wise, (SCC),[1992] 1 S.C.R. 527; R. v. Mills, (SCC), [1999] 3 S.C.R. 668; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v.Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; Alberta (Information and Privacy Commissioner) v. United Food and CommercialWorkers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733; R. v. Sandhu, 2018 ABQB 112, 404 C.R.R. (2d) 216; R. v. Sharpe, 2001 SCC 2,[2001] 1 S.C.R. 45; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211; R. v. M. (M.R.), (SCC), [1998] 3 S.C.R. 393; R.v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. S.A.B, 2003 SCC 60, [2003] 2 S.C.R. 678; R. v.

Taylor, 2015 ONCJ 449; A.B. v.Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567; R. v. Audet, (SCC), [1996] 2 S.C.R. 171; Toronto StarNewspaper Ltd. v. Ontario, 2012 ONCJ 27, 255 C.R.R. (2d) 207. By Rowe J. Referred to: R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; Perka v. The Queen, (SCC), [1984] 2 S.C.R. 232; Sharpe v. Wakefield (1888),22 Q.B.D. 239; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R.432; Frey v. Fedoruk, (SCC), [1950] S.C.R. 517; R. v.

D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402; Dagg v. Canada(Minister of Finance), (SCC), [1997] 2 S.C.R. 403; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2S.C.R. 559; CanadianOxy Chemicals Ltd. v. Canada (Attorney General), (SCC), [1999] 1 S.C.R. 743; UniversityHealth Network v. Ontario (Minister of Finance) (2001), (ON CA), 208 D.L.R. (4th) 459; R. v. Chartrand, (SCC), [1994] 2 S.C.R. 864; R. v. Rudiger, 2011 BCSC 1397, 244 C.R.R. (2d) 69; Willick v. Willick, (SCC),[1994] 3 S.C.R. 670; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236; R. v. Drapeau (1995), (QC CA), 96 C.C.C. (3d)554; R. v.

Chase, (SCC), [1987] 2 S.C.R. 293; R. v. Bernard, (SCC), [1988] 2 S.C.R. 833; R. v. S.(P.L.), (SCC), [1991] 1 S.C.R. 909; R. v. V. (K.B.), (SCC), [1993] 2 S.C.R. 857; R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333; R. v. Hinchey, (SCC), [1996] 3 S.C.R. 1128; R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330; R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439; R. v. Larue, 2003 SCC 22, [2003] 1 S.C.R. 277; R. v.Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60; R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346; R. v. Sharpe, 2001 SCC 2, [2001] 1S.C.R. 45; R. v. Hewlett, 2002 ABCA 179, 167 C.C.C. (3d) 425; R. v.

L.A.C., 2005 ABPC 217, 386 A.R. 102; R. v. Proulx, 2000 SCC 5,[2000] 1 S.C.R. 61; R. v. Landry, (SCC), [1986] 1 S.C.R. 145; Semayne’s Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194; R.v. Morrisey, 2011 ABCA 150; R. v. Colley, 2009 BCCA 289, 273 B.C.A.C. 107; R. v. M.B., 2014 QCCA 1643. Statutes and Regulations Cited

An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005,c. 32,

preamble. Bill C-2,

An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, 1stSess., 38th Parl., 2004-2005 (assented to July 20, 2005). Canadian Charter of Rights and Freedoms, ss. 8, 24(2). Criminal Code, R.S.C. 1985, c. C-46, Parts V, XI, ss. 9(a), 151, 152, 153 ,153.1, 162, 162.1(1), 177, 276.3, 278.1, 278.5, 430, 486,486.4, 486.5. Youth Criminal Justice Act, S.C. 2002, c. 1, s. 110. Authors Cited Canada. Department of Justice. Voyeurism as a Criminal Offence: A Consultation Paper. Ottawa, 2002.

Canada. Department of Justice. Voyeurism As A Criminal Offence:

Summary of the Submissions , October 28, 2002 (online: http://www.justice.gc.ca/eng/cons/voy/final.html ; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC10_1_eng.pdf). Canada. House of Commons. House of Commons Debates , vol. 138, No. 46, 2nd Sess., 37th Parl., January 27, 2003, p. 2692. Canada. Library of Parliament. Parliamentary Information and Research Service. Bill C-2: An Act to Amend the Criminal Code (Protection of Children and Other Vulnerable Persons) and the Canada Evidence Act , Legislative

Summary LS-480E, by Robin MacKay, Law and Government Division, October 13, 2004, revised June 16, 2005. Craig, Elaine. Troubling Sex: Towards a Legal Theory of Sexual Integrity . Vancouver/Toronto: UBC Press, 2012. Gavison, Ruth. “Privacy and the Limits of the Law” (1980), 89 Yale L.J. 421. Gavison, Ruth. “Feminism and the Public/Private Distinction” (1992), 45 Stan. L. Rev. 1. Jones, Brock. “ Jarvis : Surely Schoolchildren Have A Reasonable Expectation of Privacy Against Videotaping for a Sexual Purpose?” (2017), 41 C.R. (7th) 71 . LaFave, Wayne R. and Austin W. Scott, Jr.

Substantive Criminal Law , vol. 1, 2nd ed. St. Paul, Minn.: West Publishing Co., 1986. Mewett, Alan W. and Morris Manning. Mewett & Manning on Criminal Law , 2nd ed. Toronto: Butterworths, 1985. Parker, Richard B. “A Definition of Privacy” (1974), 27 Rutgers L. Rev. 275. Paton-Simpson, Elizabeth. “Privacy and the Reasonable Paranoid: The Protection of Privacy in Public Places” (2000), 50 U.T.L.J. 305. Stewart, Hamish C. Sexual Offences in Canadian Law . Aurora, Ont.: Canada Law Book, 2004 (loose-leaf updated October 2018, release 31). Sullivan, Ruth. Sullivan on the Construction of Statutes , 6th ed.

Markham, Ont.: LexisNexis, 2014. Westin, Alan F. Privacy and Freedom . Atheneum: New York, 1970. APPEAL from a judgment of the Ontario Court of Appeal (Feldman, Watt and Huscroft JJ.A.), 2017 ONCA 778 , 139 O.R. (3d) 754, 41 C.R. (7th) 36, 356 C.C.C. (3d) 1, 396 C.R.R. (2d) 348, [2017] O.J. No. 5261 (QL), 2017 CarswellOnt 15528 (WL Can.), affirming a decision of Goodman J., 2015 ONSC 6813 , 345 C.R.R. (2d) 103, 25 C.R. (7th) 330, [2015] O.J. No. 5847 (QL), 2015 CarswellOnt 17226 (WL Can.). Appeal allowed. Christine Bartlett-Hughes and Jennifer Epstein , for the appellant.

Zachary Kerbel , Saman Wickramasinghe and Jennifer Micallef , for the respondent. Written submissions only by Lara Vizsolyi , for the intervener Attorney General of British Columbia. Jane Bailey and David Fewer , for the intervener Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic. Written submissions only by Regan Morris and James Nowlan , for the intervener Privacy Commissioner of Canada. Jonathan C. Lisus and Zain Naqi , for the intervener Canadian Civil Liberties Association. Caroline R. Zayid , Adam Goldenberg and Caroline H. Humphrey , for the intervener Ontario College of Teachers.

Stephen McCammon , for the intervener Information and Privacy Commissioner of Ontario. Gillian Hnatiw , Karen Segal and Alex Fidler-Wener , for the intervener Women’s Legal Education and Action Fund Inc. Matthew Gourlay and Kate Robertson , for the intervener Criminal Lawyers’ Association (Ontario). The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon and Martin JJ. was delivered by The Chief Justice — I. Overview [ 1 ] In 2005, Parliament enacted a new criminal offence called voyeurism in s. 162(1) of the Criminal Code , R.S.C. 1985, c. C-46 .

This offence is committed when a person surreptitiously observes or makes a visual recording of another person who is in “circumstances that give rise to a reasonable expectation of privacy”, if the observation or recording is done in one of the three situations described in paras. (

a) through (

c) of s. 162(1) . Section 162(1) (c), in particular, applies when the observation or recording is done for a sexual purpose. [ 2 ] Mr. Ryan Jarvis, the respondent in this appeal, was charged with voyeurism contrary to s. 162(1) (

c) of the Criminal Code after he used a camera concealed inside a pen to make video recordings of female students at the high school where he was a teacher. Mr. Jarvis recorded students while they were engaged in ordinary school-related activities in common areas of the school, including classrooms and hallways. Most of the videos focused on the faces and upper bodies of female students, particularly their

chests. The students did not know that they were being recorded. [ 3 ] Mr. Jarvis was acquitted at trial because the trial judge was not satisfied beyond a reasonable doubt that he had made the recordings for a sexual purpose. The acquittal was upheld by a majority of the Ontario Court of Appeal. While the Court of Appeal was of the unanimous opinion that Mr. Jarvis had made the videos for a sexual purpose, the majority held that the students recorded by him were not in circumstances that give rise to a reasonable expectation of privacy, as required for a conviction under s. 162(1) .

A dissenting judge was satisfied that the students recorded by Mr. Jarvis were in circumstances that give rise to a reasonable expectation of privacy and would have entered a conviction on that basis. [ 4 ] The Crown now appeals to this Court as of right. The only issue in the appeal is whether the Court of Appeal erred in finding that the students recorded by Mr.

Jarvis were not in circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code . [ 5 ] In my view, circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code are circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred. To determine whether a person had a reasonable expectation of privacy in this sense, a court must consider the entire context in which the observation or recording took place.

The list of considerations that may be relevant to this inquiry is not closed.

However, in any given case, these considerations may include the location where the observation or recording occurred; the nature of the impugned conduct, that is, whether it consisted of observation or recording; the awareness or consent of the person who was observed or recorded; the manner in which the observation or recording was done; the subject matter or content of the observation or recording; any rules, regulations or policies that governed the observation or recording in question; the relationship between the parties; the purpose for which the observation or recording was done; and the personal attributes of the person who was observed or recorded. [ 6 ] As I will explain, there can be no doubt in the case at bar that the students recorded by Mr.

Jarvis were in circumstances in which they would reasonably have expected not to be the subject of videos predominantly focused on their bodies, particularly their breasts — and a fortiori not to be the subject of such videos recorded for a sexual purpose by a teacher. I therefore conclude that the students recorded by Mr. Jarvis were in circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code . I would allow the appeal and enter a conviction. II. Background [ 7 ] At the times relevant to the charge in the case at bar, Mr.

Jarvis was an English teacher at a high school in London, Ontario. In June 2011, a fellow teacher informed the principal of the school that he believed Mr. Jarvis was surreptitiously recording female students at the school using a camera hidden inside a pen. The principal became concerned for the safety of the students. The following day, the principal twice observed Mr. Jarvis standing near a female student while holding up a pen that emitted a red light from the top, non-writing end. On the second occasion, the principal secured the pen from Mr. Jarvis and gave it to the police. [ 8 ] The pen seized from Mr.

Jarvis performs a number of functions. It can be used to write. It is also outfitted with a camera that can be used to record videos with audio. The pen does not have a screen on which the user can see what is being or has been recorded. The camera does not have the ability to zoom in and out while recording. Videos recorded with the camera can be downloaded to a computer for viewing and editing.

In these reasons, I will refer to this device as a “pen camera”. [ 9 ] The electronic contents of the pen camera, which were eventually entered into evidence, consisted of 35 video files: 17 “active” videos, 2 deleted videos and 16 recovered video files (2 of which could not be played). Mr. Jarvis admitted that he had recorded all of these videos using the pen camera between January 2010 and June 2011, while teaching at the high school. [ 10 ] The videos recorded by Mr. Jarvis range in length from a few seconds to several minutes.

They were shot in locations in and around the school, including hallways, classrooms, the cafeteria and the school grounds. Most of the videos focus on female students at the school. At the time the videos were recorded, these students ranged in age from 14 to 18 years old. The videos show them engaged in common school activities. The videos have an audio component and, in some of them, Mr. Jarvis can be heard speaking with students on various topics. Students wearing low-cut or close-fitting tops make up the vast majority of subjects.

It is also striking that a number of the videos are shot from above or beside female students who are seated in classrooms or computer labs, or who are in the hallways of the school, at angles that capture more of their breasts than would be visible if the students were recorded head on. [ 11 ] None of the students were aware that they were being recorded, and none of them consented to being recorded. Nor did Mr. Jarvis have the school’s permission to video or audio record students. Indeed, a school board policy in effect at the time Mr.

Jarvis made the videos prohibited his conduct in making the videos in the manner that he did: Agreed Statement of Facts, A.R., vol. 1, at p. 147. [ 12 ] The police identified 27 of the individuals in the videos as female students at the high school and charged Mr. Jarvis with 27 counts of voyeurism contrary to s. 162(1) (

c) of the Criminal Code . At the commencement of the trial, those charges were replaced with one global charge under s. 162(1) (c). III. Judicial History A. Ontario Superior Court of Justice (Goodman J.), 2015 ONSC 6813 , 345 C.R.R. (2d) 103 [ 13 ] The evidence at trial consisted of the videos recovered from the pen camera, [1] an agreed statement of facts and a photo exhibit entered on consent. In the agreed statement of facts, Mr. Jarvis admitted that he had recorded the videos recovered from the pen camera and that he had done so surreptitiously.

In light of those admissions, there remained only two questions at trial: first, whether the Crown had established that the students Mr. Jarvis recorded were in circumstances that give rise to a reasonable expectation of privacy; and second, whether the Crown had proven that Mr. Jarvis made the recordings for a sexual purpose. [ 14 ] The trial judge answered the first question in the affirmative. He concluded that, in the context of the offence in s.

162(1) , whether a person who is observed or recorded is in circumstances that give rise to a reasonable expectation of privacy does not depend solely on the physical location where the observation or recording occurs. Location is only one circumstance to be considered. In the case at bar, although the students captured in the videos had a lower and different expectation of privacy at the school than they would have had at home, they nonetheless had a reasonable expectation that they would not be surreptitiously recorded by Mr. Jarvis. [ 15 ] However, the trial judge was not satisfied that Mr.

Jarvis had made the recordings for a sexual purpose. Based on his review of the videos, he determined that Mr. Jarvis had positioned the pen camera to focus “for the most part, on the female students’ faces, bodies and cleavage or breasts, and on several occasions, exclusively so”: para. 72. However, in the trial judge’s view, although the “most likely” conclusion based on the evidence was that Mr. Jarvis had recorded the students for a sexual purpose, “there may be other inferences to be drawn”: para. 77. He acquitted Mr. Jarvis. B. Court of Appeal for Ontario (Feldman J.A., Watt J.A. Concurring; Huscroft J.A.

Dissenting), 2017 ONCA 778 , 139 O.R. (3d) 754 [ 16 ] On the Crown’s appeal from the acquittal, the Court of Appeal for Ontario was unanimously of the view that the trial judge had erred in law in failing to find that Mr. Jarvis had made the recordings at issue for a sexual purpose. According to the Court of Appeal, this was an “overwhelming case of videos focused on young women’s breasts and cleavage”, and no inference other than that the videos had been made for a sexual purpose was available on the record: paras. 53-54. [ 17 ] Nevertheless, a majority of the Court of Appeal upheld Mr.

Jarvis’ acquittal on the basis that the trial judge had also erred in finding that the students recorded by Mr. Jarvis were in circumstances that give rise to a reasonable expectation of privacy when they were recorded. The majority was of the view that a person typically expects privacy when she is in a place where she can exclude others and feel confident that she is not being observed. The majority did accept that a person could arguably retain a limited expectation of privacy in a public place in certain circumstances.

However, in the majority’s opinion, no such reasonable expectations could have arisen in the case at bar because the students recorded by Mr. Jarvis were engaged in normal school activities and interactions in common areas of the school where they would expect that others could see them and where they knew they would be recorded by the school’s security cameras. [ 18 ] Huscroft J.A. dissented.

In his view, whether a person is in circumstances that give rise to a reasonable expectation of privacy, within the meaning of s. 162(1) , should not depend solely on a person’s location and ability to exclude others from that location. He stated that, to ascertain whether a person is in circumstances that give rise to reasonable expectation of privacy, a court must determine whether the person’s interest in privacy should be given priority over competing interests. In the case at bar, according to Huscroft J.A., the students recorded by Mr.

Jarvis should be found to have had a reasonable expectation of privacy because their interest in privacy was entitled to priority over the interests “of anyone who would seek to compromise their personal and sexual integrity while they are at school”: para. 133. He would have allowed the Crown’s appeal on this basis. [ 19 ] The Crown now appeals to this Court as of right on the issue of whether the majority of the Court of Appeal erred in finding that the students recorded by Mr. Jarvis were not in circumstances that give rise to a reasonable expectation of privacy. IV.

Analysis [ 20 ] This appeal requires the Court to consider, for the first time, the elements of the offence created by s. 162(1) of the Criminal Code . That provision reads as follows: Voyeurism 162

(1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if (

a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity; (

b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or (

c) the observation or recording is done for a sexual purpose. [ 21 ] Mr. Jarvis is charged with committing the offence of voyeurism contrary to s. 162(1) (

c) of the Criminal Code . That offence is committed where a person surreptitiously observes or makes a visual recording of another person who is in circumstances that give rise to a reasonable expectation of privacy, if the observation or recording is done for a sexual purpose: see R. v. Rudiger , 2011 BCSC 1397 , 244 C.R.R. (2d) 69, at para. 75 . A “visual recording” is defined, for the purposes of s. 162, as including “a photographic, film or video recording made by any means”: Criminal Code , s. 162(2) .

[22] It is no longer in dispute that Mr. Jarvis surreptitiously made video recordings of female students at the high schooland that he did so for a sexual purpose. Thus, there remains a single question in this appeal: were the students recorded by Mr. Jarvis in“circumstances that give rise to a reasonable expectation of privacy”? [23] In order to answer this question, I will first consider what it means for a person who is observed or recorded to be in“circumstances that give rise to a reasonable expectation of privacy” as that expression is used in s. 162(1) of the Criminal Code.

I willthen consider the facts of the case at bar to determine whether the Crown has proven this element of the offence beyond a reasonabledoubt. A. When Is a Person Who Is Observed or Recorded in “Circumstances That Give Rise to a Reasonable Expectation of Privacy” forthe Purposes of Section 162(1) of the Criminal Code? [24] What does it mean, in the context of s. 162(1) of the Criminal Code, for a person who is observed or recorded to bein “circumstances that give rise to a reasonable expectation of privacy”? The parties agree that this question of statutory

interpretationmust be answered by reading the words of s. 162(1) “‘in their entire context and in their grammatical and ordinary sense harmoniouslywith the scheme of the Act, the object of the Act, and the intention of Parliament’”: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21, quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. The parties disagree,however, on the

interpretation that results from this approach.

(1) Positions of the Parties [25] In his factum in this Court, Mr. Jarvis argued that this interpretive approach leads to the conclusion thatcircumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) are circumstances in which a person hasa reasonable expectation that she, or a part of her body, will not be observed by others.

On this understanding of s. 162(1), the offence ofvoyeurism would be committed when the person who is observed or recorded is in a place where she does not expect to be observed byothers (such as when she is alone in her own home) or when the observation or recording is of a part of a person’s body that she does notexpect to be observed by others (such as a

part covered by a skirt). In oral argument, counsel for Mr. Jarvis qualified this proposedinterpretation somewhat by submitting that a person may also have a reasonable expectation of privacy for the purposes of s. 162(1)when she expects to be observed by certain other persons but not by the person doing the observation or recording at issue. [26] According to Mr.

Jarvis, the circumstances relevant to whether a reasonable expectation of privacy arises in aparticular context may include the physical features of the space in which a person is located and the degree of control the person hasover who may obtain visual access to her in the space.

However, considerations such as the nature of the impugned conduct, that is,whether it consists of recording as opposed to mere observation, the “sexual nature” of the parts of a person’s body that are beingobserved or recorded, and the relationship between the observer and the observed person are never relevant to the inquiry: R.F., at para.19. Applying this approach to the case at bar, Mr.

Jarvis submits that because the students recorded by him were in common areas of theschool where they knew they could be observed by others, they could not have had a reasonable expectation of privacy and the offencein s. 162(1) is not made out. [27] The Crown, by contrast, argues that the majority of the Court of Appeal erred by adopting an unduly narrow,location-based understanding of privacy. The Crown submits that whether a reasonable expectation of privacy arises in a given situationshould be determined on the basis of the totality of the circumstances, with location being only one factor to be considered.

In light of thefull constellation of circumstances in the case at bar — including the fact that the impugned conduct consisted of visual recording andnot merely observation, the nature of the recordings made, the trust relationship between Mr. Jarvis and the students, and the existence ofa school board policy that prohibited Mr. Jarvis from recording students in the manner he did — it must be concluded that the studentsfilmed by Mr. Jarvis had a reasonable expectation of privacy for the purposes of s. 162(1).

(2) Meaning of the Expression “Circumstances that Give Rise to a Reasonable Expectation of Privacy” in Section 162(1) [28] In my view, circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) arecircumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in factoccurred.

The inquiry into whether a person who was observed or recorded was in such circumstances should take into account the entirecontext in which the impugned observation or recording took place. [29] The following non-exhaustive list of considerations may assist a court in determining whether a person who wasobserved or recorded was in circumstances that give rise to a reasonable expectation of privacy:

(1) The location the person was in when she was observed or recorded. The fact that the location was one from which the person hadsought to exclude all others, in which she felt confident that she was not being observed, or in which she expected to be observed only bya select group of people may inform whether there was a reasonable expectation of privacy in a particular case.

(2) The nature of the impugned conduct, that is, whether it consisted of observation or recording. Given that recording is moreintrusive on privacy than mere observation, a person’s expectation regarding whether she will be observed may reasonably be differentthan her expectation regarding whether she will be recorded in any particular situation. The heightened impact of recording on privacyhas been recognized by this Court in other contexts, as will be discussed further at para. 62 of these reasons.

(3) Awareness of or consent to potential observation or recording. I will discuss further how awareness of observation or recordingmay inform the reasonable expectation of privacy inquiry at para. 33 of these reasons.

(4) The manner in which the observation or recording was done. Relevant considerations may include whether the observation orrecording was fleeting or sustained, whether it was aided or enhanced by technology and, if so, what type of technology was used. Thepotential impact of evolving technologies on privacy has been recognized by the courts, as I will discuss further at para. 63 of thesereasons.

(5) The subject matter or content of the observation or recording. Relevant considerations may include whether the observation orrecording targeted a specific person or persons, what activity the person who was observed or recorded was engaged in at the relevanttime, and whether the focus of the observation or recording was on intimate parts of a person’s body. This Court has recognized, in othercontexts, that the nature and quality of the information at issue are relevant to assessing reasonable expectations of privacy in thatinformation. As I will discuss further at paras. 65-67 of these reasons, this principle is relevant in the present context as well.

(6) Any rules, regulations or policies that governed the observation or recording in question. However, formal rules, regulations orpolicies will not necessarily be determinative, and the weight they are to be accorded will vary with the context.

(7) The relationship between the person who was observed or recorded and the person who did the observing or recording.Relevant considerations may include whether the relationship was one of trust or authority and whether the observation or recordingconstituted a breach or abuse of the trust or authority that characterized the relationship. This circumstance is relevant because it wouldbe reasonable for a person to expect that another person who is in a position of trust or authority toward her will not abuse this positionby engaging in unconsented, unauthorized, unwanted or otherwise inappropriate observation or recording.

(8) The purpose for which the observation or recording was done. I will explain why this may be a relevant consideration at paras.31-32 of these reasons.

(9) The personal attributes of the person who was observed or recorded. Considerations such as whether the person was a child or ayoung person may be relevant in some contexts. [30] I emphasize that the list of considerations that can reasonably inform the inquiry into whether a person who wasobserved or recorded had a reasonable expectation of privacy is not exhaustive. Nor will every consideration listed above be relevant inevery case.

For example, recordings made using a camera hidden inside a washroom will breach reasonable expectations of privacyregardless of the purpose for which they are made, the age of the person recorded, or the relationship between the person recorded andthe person who did the recording. In another context, however, these latter considerations may play a more significant role.

The inquiryis a contextual one, and the question in each case is whether there was a reasonable expectation of privacy in the totality of thecircumstances. [31] I pause here to note that there is nothing incongruous about considering the purpose of observation or recording indetermining whether it was done in breach of a reasonable expectation of privacy. This Court has recognized, in other contexts, that aperson’s reasonable expectation of privacy with respect to information about the person will vary depending on the purpose for whichthe information is collected: see R. v.

Dyment, (SCC), [1988] 2 S.C.R. 417, at pp. 429-32, per La Forest J.; Dagg v.Canada (Minister of Finance), (SCC), [1997] 2 S.C.R. 403, at para. 75. This conclusion also flows from a commonsense understanding of privacy expectations. For example, if a patient disrobes to allow a physician to view her breasts or othersexualized parts of her body for the purpose of receiving a medical diagnosis, the patient cannot complain that the physician hasbreached any reasonably held expectation of privacy by performing the diagnostic procedure.

However, if the diagnostic procedure turnsout to be a pretext on which the physician relies in order to view the patient for a non-medical purpose — whether sexual or otherwise —the patient’s privacy will undeniably be violated. [32] The fact that it is an element of the offence in s. 162(1)(

c) that observation or recording be done for a sexual purposedoes not make it inappropriate to consider the purpose of the observation or recording in assessing whether it was done in breach of areasonable expectation of privacy, as required by s. 162(1). In the context of this latter inquiry, purpose is only one non-determinativefactor to be taken into account along with other relevant circumstances. By contrast, sexual purpose, as an element of the offence in s.162(1)(c), must be established beyond a reasonable doubt for the offence to be proven.

In some cases, depending on the entire context,observation or recording may not breach expectations of privacy despite having a sexual purpose. In such cases, the offence in s. 162(1)will not be made out.

In other cases, observation or recording may be an obvious breach of privacy regardless of its purpose, and it canground a conviction under s. 162(1) if the other elements of the offence are made out. [33] Similarly, although the surreptitiousness of the observation or recording is an element of the offence in s. 162(1),this does not mean that it can never be considered in assessing whether the person who was observed or recorded had a reasonableexpectation of privacy.

For example, the fact that a person chose to be secretive about recording another person in a particular situationmay support the conclusion that the recording was contrary to the norms regarding privacy and visual recording that exist in that context.However, as with the purpose of the observation or recording, surreptitiousness will only ever be one consideration, among many, to betaken into account in assessing reasonable expectations of privacy; it cannot be allowed to overwhelm the reasonable expectation ofprivacy analysis.

It is possible under s. 162(1) for observation or recording to be done surreptitiously but not in breach of a reasonableexpectation of privacy. Conversely, observation or recording that is done openly may breach reasonable expectations of privacy, thoughbecause it is not surreptitious, it will not constitute an offence under s. 162(1).

[ 34 ] As I will now explain, the above

interpretation of the requirement in s. 162(1) that a person who is observed or recorded be in “circumstances that give rise to a reasonable expectation of privacy” is the

interpretation that best accords with the language, context and purpose of that provision.

(3) This

Interpretation of the Expression “Circumstances That Give Rise to a Reasonable Expectation of Privacy” Best Accords With the Language, Context and Purpose of Section 162(1) (

a) Opening Words of Section 162(1) [ 35 ] I will begin by considering the words chosen by Parliament to express the element of s. 162(1) with which we are concerned in this appeal and the “ordinary” or “natural” meaning that appears when these words are read in their immediate context: see R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 30.

In my view, the ordinary and grammatical sense of the words “circumstances that give rise to a reasonable expectation of privacy”, when read in the context of the opening words of s. 162(1) , is consistent with the understanding of this element that I have set out above, for a number of reasons. [ 36 ] The concept of “privacy” defies easy definition, and I do not propose to offer a comprehensive definition here. However, in a general sense and as ordinarily used, the word “privacy” includes the concept of freedom from unwanted scrutiny, intrusion or attention.

Section 162(1) is specifically directed at two types of attention: observation and visual recording. The opening words of s. 162(1) therefore suggest that the “reasonable expectation of privacy” with which the provision is concerned is an expectation that one will not be observed or visually recorded. [ 37 ] One question raised by the present appeal is whether a person can ever retain such an expectation when she knows she can be observed by others or when she is in a place from which she cannot exclude others — what may be described as a “public” place.

In my view, on an ordinary understanding of the concept of privacy, this question must be answered in the affirmative. I readily accept that expectations of privacy with respect to observation or recording will generally be at their highest when a person is in a traditionally “private” place from which she has chosen to exclude all others. For example, a person alone at home, or in a washroom with the door closed, would typically expect near absolute privacy — and certainly would expect not to be observed or recorded without her knowledge.

But a person does not lose all expectations of privacy, as that concept is ordinarily understood, simply because she is in a place where she knows she can be observed by others or from which she cannot exclude others. [ 38 ] In my view, a typical or ordinary understanding of the concept of privacy recognizes that a person may be in circumstances where she can expect to be the subject of certain types of observation or recording but not to be the subject of other types.

An obvious example is that of a person who chooses to disrobe and engage in sexual activity with another person and who necessarily expects to be observed by that other person while she is nude and engaging in that activity. Her privacy would nonetheless be violated if that other person, without her knowledge, video recorded the two of them engaging in the activity.

And a couple who choose to film themselves engaged in sexual activity do not thereby waive their expectation that third parties will not secretly observe or record them engaging in that activity. [ 39 ] Similarly, a woman changing in a communal women’s change room at a public pool would expect to be observed incidentally in various states of undress by other users of the change room. However, there can be no debate that she would retain some expectation of privacy with respect to observation or recording.

For one thing, she would expect to be observed only by the other women in the change room and not by the general public. She would also expect not to be photographed or video recorded while undressing, either by other change room users or by anyone else.

If it turned out that a mirror in the change room was actually a one-way glass that allowed pool staff to view change room occupants or that someone had concealed a camera in a vent and was video recording persons while they were changing, surely this would be viewed as an invasion of “privacy”, on any ordinary understanding of that word. [ 40 ] 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 (a hypothetical scenario discussed in Rudiger , at para. 91 ).

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. [ 41 ] 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.

Rather, these examples indicate that whether observation or recording would generally be regarded as an invasion of privacy depends on a variety of factors, which may include a person’s location; the form of the alleged invasion of privacy, that is, whether it involves observation or recording; the nature of the observation or recording; the activity in which a person is engaged when observed or recorded; and the part of a person’s body that is the focus of the recording. [ 42 ] The fact that a variety of factors may influence whether a person would expect not to be observed or recorded is also consistent with Parliament’s choice to express the element of the offence in s. 162(1) with which we are concerned by reference to the “circumstances” that give rise to a reasonable expectation of privacy.

The word “circumstances”, in the sense in which it is used in s. 162(1), connotes a range of factors or considerations — which are not limited to a person’s location or physical surroundings. [ 43 ] I recognize that expressing this element by reference to the circumstances in which a person is observed or recorded is also a way to make it clear that this element relates to privacy expectations that would reasonably arise from the context in which observation or recording takes place, not to the subjective, and potentially idiosyncratic, privacy expectations of the particular person who is observed or recorded.

Nonetheless, had Parliament intended to limit the types of circumstances that can be considered in determining whether such an expectation may reasonably arise, it could have done so expressly in s. 162(1) , for example by defining “circumstances that give rise to a reasonable expectation of privacy” as including only certain types of circumstances or by providing a list of circumstances or factors to be taken into account in determining whether such an expectation could reasonably arise. Indeed, if

Parliament’s intention in using the phrase “circumstances that give rise to a reasonable expectation of privacy” was to limit the scope of the conduct prohibited by s. 162(1) to observing or recording a person who does not believe she can be observed, Parliament could have made this explicit, for example by prohibiting surreptitious recording or observation of “a person who does not believe he or she can be observed” where the elements in paras. (a), (

b) or (

c) of s. 162(1) are present. But Parliament did not do this; instead, it used the word “circumstances”, without limitation. (

b) Statutory Context [ 44 ] The immediate statutory context of the words “circumstances that give rise to a reasonable expectation of privacy” lends further support to the view that this element is not governed solely or primarily by a person’s physical location and does not limit the commission of the offence to traditionally “private” spaces, such as bedrooms and bathrooms. Section 162(1) prohibits the surreptitious observation or recording of a person who is in “circumstances that give rise to a reasonable expectation of privacy” in three situations, set out in paras. (a), (

b) and (

c) as follows: (

a) the person [who is observed or recorded] is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity; (

b) the person [who is observed or recorded] is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or (

c) the observation or recording is done for a sexual purpose. [ 45 ] Notably, para. (

a) expressly circumscribes the scope of the prohibited observation or recording by reference to location — that is, it prohibits observation or recording in places where nudity or sexual activity may reasonably be expected. It would therefore be incongruous with para. (

a) to read the requirement that the person who is observed or recorded be in circumstances that give rise to a reasonable expectation of privacy as also being governed by location, because this would mean that two separate elements of the offence in s. 162(1) (

a) would both be concerned primarily with the location of the observation or recording. [ 46 ] Furthermore, if the reference to “circumstances that give rise to a reasonable expectation of privacy” in s. 162(1) is understood as limiting the scope of the prohibited conduct to surreptitious observation or recording in traditionally “private” places, it is difficult to conceive of situations that would fall outside the scope of s. 162(1) (

a) but within the scope of s. 162(1) (

b) or (c). In other words, if a reasonable expectation of privacy can arise only in traditionally “private” or “quasi-private” places from which others can be excluded — such as a home, bathroom or change room — then a person who can reasonably expect privacy will almost always be in a place where she can also reasonably be expected to be nude or partially nude — the type of place contemplated in para. (

a) of s. 162(1) . But the inclusion of paras. (

b) and (

c) in s. 162(1) indicates that Parliament understood that a person could have a reasonable expectation of privacy somewhere other than in a place where nudity or explicit sexual activity can reasonably be expected or is in fact taking place — otherwise, paras. (

b) and (

c) would have no application. A narrow reading of “circumstances that give rise to a reasonable expectation of privacy”, then, would run contrary to the principle that a legislative provision should not be interpreted so as to render it, or parts of it, “mere surplusage”: R. v.

Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61, at para. 28 ; see generally Sullivan, at p. 211. [ 47 ] An argument that can be made against this line of reasoning is that there are locations from which a person can exclude others but where nudity or sexual activity would not reasonably be expected — for example, a private office in a workplace — and that it is observation and recording in places such as this with which paras. (

b) and (

c) of s. 162(1) are concerned. However, given the limited range of locations of this type and given that there is no reason to think that sexually exploitative observation or recording in such places poses a particular concern, it is difficult to accept that these paragraphs were enacted to protect against observation or recording of nudity or sexual activity, or observation or recording for a sexual purpose, specifically in such places. Rather, it is clear that s. 162(1) contemplates that, in some circumstances, a person may retain an expectation that she will not be observed or recorded even when she is not in an exclusively or traditionally “private” space. (

c) Purpose and Object of Section 162(1) [ 48 ] This understanding of when a reasonable expectation of privacy arises in this context also best accords with Parliament’s object in enacting the offence in s. 162(1) : to protect individuals’ privacy and sexual integrity, particularly from new threats posed by the abuse of evolving technologies. As I will explain below, reading the expression “circumstances that give rise to a reasonable expectation of privacy” narrowly, as urged by Mr.

Jarvis, would undermine Parliament’s intention that s. 162(1) prohibit surreptitious observation or visual recording that amounts to sexual exploitation or that represents the most egregious breaches of privacy. [ 49 ] Section 162(1) was introduced into the Criminal Code as part of Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act , 1st Sess., 38th Parl., 2004-2005 (assented to July 20, 2005).

The legislative process leading to this enactment, as well as the language of Bill C-2 itself, confirm that the purpose of s. 162 is to protect individuals’ privacy and sexual integrity. A 2002 consultation paper prepared by the federal government for the purpose of a public consultation on the introduction of a new voyeurism offence sheds light on the impetus for the legislative reform that eventually resulted in the enactment of s. 162 in 2005.

The paper confirms that the reform was motivated by concerns about the potential for rapidly evolving technology to be abused for the secret viewing or recording of individuals for sexual purposes and in ways that involve a serious breach of privacy: Department of Justice, Voyeurism as a Criminal Offence: A Consultation Paper (2002), at p. 1. At that time, there was no criminal offence that specifically addressed voyeurism or the distribution of voyeuristic materials.

Although some instances of such behaviour could be caught incidentally by existing offences, the law could not deal with other instances of objectionable surreptitious recording. As an example of such behaviour, the paper referred to an incident where a person videotaped his consensual sex

acts with a woman without her knowledge and the tapes were later shown at parties: pp. 5-6. [50] The consultation paper explained that the harm that potential new voyeurism offences would address could beconceptualized in one of two ways: as “the breach of a right to privacy that citizens enjoy in a free and democratic society” or as thesexual exploitation of individuals: pp. 6-8. Sexual exploitation, it was suggested, would occur either when the observation or recordingwas done for a sexual purpose or when the observation or recording was of sexual subject matter, such as a person’s sexual organs orbreasts.

Two general versions of a voyeurism offence were therefore proposed: one concerned with observation or recording for a sexualpurpose and the other with observation or recording for the purpose of capturing a person who was in a state of undress exposingsexualized parts of the body or who was engaged in sexual activity: pp. 8-10. [51] According to a

summary of the responses the government received to the consultation paper, the majority ofrespondents were in favour of conceptualizing voyeurism as both a sexual and a privacy-based offence: Department of Justice, VoyeurismAs A Criminal Offence:

Summary of the Submissions, October 28, 2002 (online).

Indeed, the circumstances surrounding its enactmentconfirm that the voyeurism offence eventually incorporated into the Criminal Code was meant to deal with both of these related harms.The offence was enacted as part of Bill C-2, an overarching purpose of which was to “protect children and other vulnerable persons fromsexual exploitation, violence, abuse and neglect”: Library of Parliament, Parliamentary Information and Research Service, Bill C-2: AnAct to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, revised June 16,2005, at p. 1, quoting Department of Justice, Media Advisory, Ottawa, October 8, 2004.

And, in relevant part, the

preamble to the Billindicates that it was meant to address concerns raised by the fact that “continuing advancements in the development of new technologies,while having social and economic benefits, facilitate sexual exploitation and breaches of privacy”:

An Act to amend the Criminal Code(protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32. [52] The fact that an important aspect of the purpose of s. 162(1) is to protect individuals, especially vulnerableindividuals, from sexual exploitation militates against the narrow reading of the phrase “circumstances that give rise to a reasonableexpectation of privacy” urged by Mr. Jarvis, and the one adopted by the majority of the Court of Appeal.

As I have explained above,concluding that a reasonable expectation of privacy can arise only when a person is in a traditionally private or quasi-private place fromwhich she can exclude others would leave a vanishingly small role for para. (

b) and entirely negate para. (

c) of s. 162(1) — theparagraphs that are most explicitly concerned with behaviours that impact on sexual integrity. And if Mr. Jarvis’ reading of “reasonableexpectation of privacy” — which makes no distinction between observation and recording — were accepted, s. 162 would fail to captureconduct such as the non-consensual recording of a sexual partner engaged in sexual activity and the subsequent distribution of therecording: see s. 162(1) and (4). Any person who allows her partner to observe her during sexual activity would, on Mr.

Jarvis’ proposedinterpretation, no longer hold a reasonable expectation of privacy against her partner’s surreptitious recording of the activity — conductthat not only has an obvious and profound impact on sexual integrity, but that is also the type of conduct that initially spurred thelegislative reform leading to the enactment of s. 162: see Voyeurism as a Criminal Offence: A Consultation Paper, at p. 6.

Furthermore,understanding expectations of privacy as arising only in places from which one can exclude others would undermine the protection that s.162(1) affords to vulnerable members of society, including children, who are least likely to have absolute control over their surroundingsin this sense but who are the persons Bill C-2 was principally concerned with protecting. [53] I pause here to note that other aspects of the legislative history of s. 162(1) further support the

interpretation of theexpression “circumstances that give rise to a reasonable expectation of privacy” that I have set out above. For example, the 2002consultation paper contemplated versions of a voyeurism offence that circumscribed the scope of the offence by reference to the placewhere observation or recording occurred. First, the paper referred to a 2000 Uniform Law Conference motion to create an offence thatwould prohibit surreptitious observation or recording for a sexual purpose “of another person in a dwelling house or business premiseswhere there is an expectation of privacy”: p. 3 (emphasis added).

Second, the paper proposed a general formulation of a voyeurismoffence that would require the person being observed or recorded to be “in a place and in circumstances that give rise to a reasonableexpectation of privacy”: p. 9 (emphasis added). The fact that, by contrast, the opening words of s. 162(1), as enacted, do not makespecific reference to the location of observation or recording indicates that Parliament did not intend these words to limit the commissionof the offence to certain locations.

The consultation paper, at p. 13, also discussed a public good defence (a version of which waseventually enacted in s. 162(6) of the Criminal Code) that could be relied on where video surveillance of public or private facilities fellafoul of the prohibition on voyeurism. This indicates that, even at that stage, it was contemplated that voyeurism could be committed inpublic or semi-public places — i.e., public or private facilities that were under video surveillance.

And the acknowledgement in theconsultation paper, at p. 11, of the greater threat to privacy and sexual integrity posed by recording, as opposed to mere observation,supports the view that whether the behaviour in question is observation or recording is relevant to whether it breaches reasonableexpectations of privacy. (

d) Broader Legal Context [54] The

interpretation of a statutory provision may be informed by the broader legal context.

Because Parliament choseto describe the element of the offence with which we are concerned using the expression “reasonable expectation of privacy”, one aspectof the broader legal context is of particular importance in the case at bar: the jurisprudence interpreting the right to be secure againstunreasonable search and seizure guaranteed in s. 8 of the Charter, along with closely related jurisprudence. [55] The concept of “reasonable expectation of privacy” has played a central role in the jurisprudence on s. 8 of theCharter since this Court’s earliest decisions interpreting that provision: see Hunter v.

Southam Inc., (SCC), [1984] 2S.C.R. 145. Since that time, the concept has also been employed by courts, including this Court, in delineating the scope of privacy rightsoutside the context of s. 8 of the Charter and has been used in other provisions of the Criminal Code: see Dagg, at paras. 71-75, per LaForest J., dissenting but not on this point; Srivastava v. Hindu Mission of Canada (Quebec) Inc., (QC CA), [2001]R.J.Q. 1111 (C.A.), at paras. 68-69; Criminal Code, ss. 278.1 and 278.5. [56] A legislature is presumed to have a mastery of existing law: Sullivan, at p. 205.

When a legislature uses a commonlaw term or concept in legislation, that term or concept is presumed to retain its common law meaning: Sullivan, at p. 543. Therefore,Parliament must be understood as having chosen the words “reasonable expectation of privacy” in s. 162(1) purposefully and with theintention that the existing jurisprudence on this concept would inform the content and meaning of these words in this section.

[57] Of course, the relevant differences between the context of s. 8 of the Charter and the context of the offence in s.162(1) must be kept in mind. While one purpose of s. 162(1) of the Criminal Code is to protect individuals’ privacy interests fromintrusions by other individuals, the purpose of s. 8 of the Charter is to protect individuals’ privacy interests from state intrusion: seeHunter v. Southam, at pp. 159-60; R. v. Plant, (SCC), [1993] 3 S.C.R. 281, at p. 291. The s. 8 case law has developed inrelation to this latter purpose.

The “reasonable expectation of privacy” that is decisive in the s. 8 context is therefore an individual’sreasonable expectation of privacy vis-à-vis the state, or more specifically, vis-à-vis the instrumentality of the state that is said to haveintruded on the individual’s privacy: see R. v. Duarte, (SCC), [1990] 1 S.C.R. 30, at pp. 44-49; Plant, at pp. 291-93; R.v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 2-3 and 66-73; R. v.

Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 40-41. [58] However, the s. 8 jurisprudence recognizes that the inquiry into whether an individual has a reasonable expectationof privacy vis-à-vis the state with respect to a certain subject matter may be informed, in part, by considering the individual’s privacyexpectations vis-à-vis other individuals: see Duarte, at p. 47; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at paras. 19-24 and 33-34;R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 32, 38-41 and 46-49.

Thus, while the ultimate concern in the s. 8 context iswhether there is a reasonable expectation of privacy vis-à-vis the state, the s. 8 case law contemplates that individuals may havereasonable expectations of privacy against other private individuals and that these expectations may be informed by some of the samecircumstances that inform expectations of privacy in relation to state agents.

This lends support to the view that the jurisprudence on s. 8of the Charter may be useful in resolving the question raised in the case at bar. [59] The s. 8 jurisprudence is instructive in interpreting s. 162(1) of the Criminal Code for another reason besides the factthat s. 162(1) uses the phrase “reasonable expectation of privacy”. The express terms of s. 162(1), as well as its legislative history,demonstrate that this provision is concerned with protecting individuals’ privacy interests in specific contexts.

Because this Court andother courts in Canada have most frequently had occasion to consider the concept of privacy in the context of s. 8 of the Charter, the s. 8case law represents a rich body of judicial thought on the meaning of privacy in our society. And far from being unmoored from ourordinary perceptions of when privacy can be expected, as Mr.

Jarvis suggests, judgments about privacy expectations in the s. 8 contextare informed by our fundamental shared ideals about privacy as well as our everyday experiences. [60] I therefore turn now to a number of principles established in the jurisprudence on s. 8 of the Charter, and the broaderprivacy jurisprudence, that I consider relevant to interpreting the meaning of “reasonable expectation of privacy” in s. 162(1) of theCriminal Code.

The first of these principles is that determining whether a person can reasonably expect privacy in a particular situationrequires a contextual assessment that takes into account the totality of the circumstances: see Plant, at p. 293; R. v. Edwards, (SCC), [1996] 1 S.C.R. 128, at paras. 31 and 45; Schreiber v. Canada (Attorney General), (SCC), [1998] 1S.C.R. 841, at para. 19; Buhay, at para. 18; Tessling, at para. 19. As I have explained above, the idea that a variety of circumstances mayreasonably inform a person’s expectation of privacy is consistent with a common sense understanding of the concept of privacy.

The factthat this is a well-established principle in our jurisprudence lends further support to the view that Parliament intended it to apply in the s.162(1) context. [61] The second principle from the jurisprudence on s. 8 of the Charter and the broader privacy jurisprudence that isapplicable in the s. 162(1) context is that privacy is not an “all-or-nothing” concept. In other words, simply because a person is incircumstances where she does not expect complete privacy does not mean that she waives all reasonable expectations of privacy: seeDuarte; R. v. Wong, (SCC), [1990] 3 S.C.R. 36; R. v.

Wise, (SCC), [1992] 1 S.C.R. 527; R. v. Mills, (SCC), [1999] 3 S.C.R. 668, at para. 108; Buhay, at para. 22; see also R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R.212, at paras. 41-44; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at paras. 28-29 and 37-43; Alberta (Information and PrivacyCommissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733, at paras. 27 and 38 (“Alberta v.UFCW, Local 401”).

Thus, the fact that a person knows she will be observed by others, including by strangers, does not in itself meanthat she forfeits all reasonable expectations of privacy in relation to observation or visual recording. [62] An example of this broader principle that is recognized in the jurisprudence is that the intrusion into our privacy thatoccurs when a person hears our words or observes us in passing is fundamentally different than the intrusion that occurs when the sameperson simultaneously makes a permanent recording of us and our activities: see Duarte, at p. 48; Wong, at pp. 44 and 48-53; see alsoAlberta v.

UFCW, Local 401, at para. 27. A visual recording may be able to capture a level of detail that the human eye cannot. A visualrecording can also capture this detail in a permanent form that can be accessed, edited, manipulated and studied by the person whocreated the recording and that can be shared with others: see R. v. Sandhu, 2018 ABQB 112, 404 C.R.R. (2d) 216, at para. 45; see alsoAlberta v. UFCW, Local 41, at para. 27.

As this Court has recognized in the context of child pornography, where a photo or videorepresents sexual exploitation of a person, that person may be harmed for years following its creation by the knowledge that it “may stillexist, and may at any moment be being watched and enjoyed by someone”: R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 92,per McLachlin C.J.; see also paras. 164, 189-90 and 241, per L’Heureux-Dubé, Gonthier and Bastarache JJ.

This is not to say that anyperson who appears in any public place retains a reasonable expectation that she will not be recorded by anyone for any reason: sometypes of visual recording in public places are to be expected.

Rather, it is to emphasize that there is a fundamental difference betweenmere observation and recording and that this difference is part of the context that must be considered in analyzing reasonableexpectations of privacy. [63] Relatedly, the privacy jurisprudence recognizes the potential threat to privacy occasioned by new and evolvingtechnologies more generally and the need to consider the capabilities of a technology in assessing whether reasonable expectations ofprivacy were breached by its use: see Wise, at pp. 534-35; Tessling, at para. 16; see also Alberta v. UFCW, Local 401, at paras. 20 and27.

As Voith J. observed in Rudiger, even where a permanent recording is not made, technology may allow a person to see or hear moreacutely, thereby t

[…]