The Supreme Court of Canada unanimously determined earlier this month that Ryan Jarvis, while teaching at a high school in London, Ont., had committed the criminal offence of voyeurism. He had been using a camera pen to take secret videos of several of his students’ breasts and bodies for a sexual purpose. The majority’s reasons will be important in many respects including, not least, by providing a confirmation that Jarvis’ behaviour does in fact amount to voyeurism.
Two key and interconnected themes in the majority’s reasons — that privacy is not lost when one is in public, and that the use of technology is relevant to the privacy assessment — also have the potential to make a broader social impact, particularly in an era of Internet-connected devices, discreet surveillance technology, deepfakes and the nonconsensual distribution of images.
We need to emphasize that the criminal justice system is not necessarily an effective or appropriate mechanism for addressing sexual and gender-based violence like voyeurism, from the perspective of survivors, offenders and society as a whole. Nevertheless, what the Supreme Court has to say about privacy and nonconsensual collection and use of images sets norms, and we think it is important to examine these aspects of the decision, while simultaneously thinking about how we as a society can better respond to sexual violence.
The first key theme in the majority decision is its clear statement that privacy is not an all-or-nothing concept. A person doesn’t abandon all interest in or protection of privacy simply by being in a place where others can see her. This finding builds on previous Supreme Court cases, including Aubry v. Éditions Vice-Versa, R. v. Spencer and R. v. Marakah, and affirms that the reasonable expectation of privacy is a contextual concept. These cases found that whether a person can expect privacy in various circumstances cannot be reduced to a single analytical factor, such as whether that person was in a private location, or if certain information remained in a state of complete secrecy. Instead, a range of factors must be considered in a court’s privacy analysis.
In Jarvis, the voyeurism offence required that the complainants have a reasonable expectation of privacy for a conviction to be possible. The Court rejected the idea that simply because the young women recorded by Jarvis were in quasi-public school hallways where they could be seen by others, including by the school’s security cameras, and because they were wearing particular styles of clothing, they could not reasonably expect privacy.
This determination is important for several reasons.
Voyeurism is a heavily gendered crime, with the majority of complainants being women and children and the majority of perpetrators being men. It can occur in private spaces, such as a changeroom or bedroom where a camera might be hidden; but it can also happen in public spaces, when someone photographs an unsuspecting person from a drone or uses a cellphone to secretly record videos of a woman walking. The earlier decision by the Ontario Court of Appeal in the Jarvis case left it an open question whether individuals are protected from surveillance that targets them sexually every time they enter a public space; allowing that decision to stand would have sent a message that individuals must accept the risk of surveillance, or stay inside. This is an outdated and unacceptable vision of privacy.
The majority’s discussion of a “reasonable expectations of privacy” has the potential to impact not only criminal law but also our constitutional protections against the state and our protections vis-à-vis corporate and private data collection.
The decision in Jarvis applies to and protects everyone, but it will be particularly significant for people whose privacy is more commonly invaded in public spaces. And, while the decision is about a specific Criminal Code offence, the majority’s discussion of a “reasonable expectations of privacy” has the potential to impact not only criminal law but also our constitutional protections against the state and our protections vis-à-vis corporate and private data collection. In other words, if this interpretation rings true for privacy broadly — and we believe it should — this is a significant affirmation that public spaces can be places of self-expression and replenishing solitude alike, for everyone. This is especially important as surveillance technologies including facial recognition, drones, Internet-connected smart city technologies and automated robotic technologies increasingly enter our public spaces. Individuals and communities targeted by such technologies — including but, unfortunately, not limited to women and children — should have legal recourse for invasions of their privacy outside of private spaces.
The second theme to note is that the Court not only discussed the right to privacy in public spaces; Chief Justice Wagner also highlighted the ways in which technological recordings alter an intrusion of privacy. The Court noted that our society places a high value on personal privacy, “including visual access to our bodies,” and that recordings are “more intrusive on privacy than mere observation.” This acknowledgement is important at a time when the abusive use of images is on the rise and technological advancements are broadening the manner in which images can be misused. Voyeurism is one branch of the larger collection of behaviours that encompass image-based abuse. Others include the nonconsensual distribution of intimate images, extorting people with their sexual images and the harmful manipulation of people’s images. Each of these behaviours is facilitated by the evolution of technology.
A recording is fundamentally different than an observation, and it is significant that the Supreme Court determined that whether the voyeurism is a recording or observation must be taken into account when analyzing a person’s reasonable expectation of privacy.
In 2005, Parliament adopted the voyeurism offence in response to new technology such as miniature cameras and zoom lenses that allowed visual access that was previously unimaginable. In 2019, the Supreme Court has recognized the potential for voyeuristically captured images to be edited, manipulated, repeatedly accessed and studied intently. Modern technology such as social media and cloud storage allows for voyeuristic images to be subsequently copied, shared and distributed with ease, while photo editing software and deepfake technology give perpetrators the ability to turn neutral photos into sexually explicit images. Technology can change the context of a visual object, allowing for particularized and enhanced viewing of the person in the image. Further, the prolonged access to the image prolongs the harm. The permanence of the recording alters the potential harm because the person in the image is aware that copies of their image may continue to proliferate and be used by others for others’ private pleasure indefinitely. As a result, a recording is fundamentally different than an observation, and it is significant that the Supreme Court determined that whether the voyeurism is a recording or observation must be taken into account when analyzing a person’s reasonable expectation of privacy.
Although the facts of Jarvis did not include the manipulation or distribution of the images, the Court’s recognition that these risks could further undermine a complainant’s privacy and sexual autonomy will be significant for future cases, particularly because this analysis is significant beyond the voyeurism offence. Bringing the Court’s analysis into future applications of the tort of invasion of privacy, for instance, may provide legal recourse for nonconsensual collection and distribution of images outside the criminal justice system. And the Court’s recognition of the privacy-invading nature of technology will, hopefully, impact and restrain the use of different surveillance technologies by state agents.
While the Court’s decision in Jarvis is not a panacea against gendered privacy invasions and image-based abuse, it certainly lays an important foundation for legal developments that can help to address these issues. And, crucially, it contributes to a broader conversation about social norms related to surveillance and privacy in public and semi-public spaces.
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