Yesterday, the Supreme Court of Canada set an important precedent with its ruling on a case involving high-school voyeurism.
The case was lurid enough to garner considerable media attention. But the wider ramifications of the court's ruling should be the main focus.
Ryan Jarvis was found guilty of ‘voyeurism:' a Criminal Code charge created in 2005, defined as watching or recording someone for a sexual purpose, when they have a "reasonable expectation of privacy." It's that latter stipulation that makes this ruling so significant.
The charge against Jarvis dates back to 2010, and, as has been widely reported, stemmed from his video-recording of high-school students' faces, chests and cleavage, using tiny ‘pen' cameras. (The details are summarized on the Supreme Court of Canada Case in Brief page.)
Jarvis was acquitted at his original trial in 2015, by a judge who was not "convinced beyond a reasonable doubt" that the videos had a "sexual purpose." Two years later, the Ontario Court of Appeal again acquitted Jarvis, ruling that the videos did have a sexual purpose, but that students under 24-hour security-camera surveillance did not have a "reasonable expectation of privacy at the time."
One Court of Appeal judge dissented, paving the way for a final appeal to the Supreme Court.
This was the first time the Supreme Court had considered "the elements of the crime of voyeurism." It was essentially tasked with one question: could students have a reasonable expectation of privacy in common areas of their school - "specifically, privacy from the type of secret recording Mr. Jarvis did."
Yesterday's Supreme Court's ruling, written for the majority of the court by Chief Justice Richard Wagner, includes many fascinating conclusions about the nature of privacy in the modern world, and the legal protections of privacy under Canadian law.
Wagner noted that "'privacy' defies easy definition," but that "in a general sense" the word "includes the concept of freedom from unwanted scrutiny, intrusion or attention." He added that the "reasonable expectation of privacy" is "an expectation that one will not be observed or visually recorded."
Wagner then asked rhetorically "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." He added, unequivocally: "In my view... this question must be answered in the affirmative."
Wagner admitted that the expectation of privacy would be higher in traditionally ‘private' places: alone at home, or in a washroom,. But, crucially, he added that "a person does not lose all expectations of privacy... because she is in a place where she knows she can be observed by others of from which she cannot exclude others."
What's more, Wagner goes on into specific scenarios. For example, a person "who chooses to disrobe and engage in sexual activity" nonetheless would have an expectation that she would not be video recorded in that activity. And further, that a couple who chooses to record their sexual activity would have an expectation that third parties would not "secretly observe or record" them.
Wagner further notes that "a person lying on a blanket in a public park" would expect to be observed by other users of the park, or even "captured incidentally in the background" of photos - but "would retain an expectation that no one would use a telephoto lens to take photos up her skirt." Use of cell phones on public transit or drones at a swimming pool "would all raise similar privacy concerns."
"These examples illustrate that ‘privacy'... is not an all-or-nothing concept," sums up the judgment. Rather, it "depends on a variety of factors, which may include a person's location, the form of the alleged invasion of privacy... the activity in which a person is engaged... and the part of a person's body that is the focus" of the observation or recording.
Significantly, the judgment also states: "While evolving technologies may make it easier, as a matter of fact, for state agents or private individuals to glean, store and disseminate information about us, this does not necessarily mean that our reasonable expectations of privacy will correspondingly shrink."
The Supreme Court ruling goes on for almost 100 pages, most of them dealing with the specific concerns surrounding voyeurism. However, by broadening the definition of ‘privacy,' the ruling sets an important precedent.
Both the Canadian Civil Liberties Association (CCLA) and Canadian Internet Policy and Public Interest Clinic (CIPPIC) weighed in on the case.
"The rights of every person in Canada who is regularly observed and potentially caught by the lens of a camera as soon as they walk down a public sidewalk have been affirmed," said Brenda McPhail, Director of the Privacy, Technology and Surveillance Project at the CCLA.
"The case is particularly notable for its approach to technology: ease of surveillance does not necessarily shrink reasonable expectations of privacy," stated CIPPIC in an online post. "Just because we can be recorded or photographed does not undermine the reasonableness of our expectation that we won't be, or that such recordings won't be used in another, unexpected and unwanted context."
Of course, we should not forget that the Supreme Court ruling was focused on the specific concerns around voyeurism: surreptitious observation or recording by an individual, with sexual purpose. Nonetheless, parts of the ruling will clearly impact the emerging debate regarding ubiquitous surveillance by government and corporate actors.
Yesterday's ruling doesn't resolve those bigger issues. But it is a significant step in the right direction. We can only protect privacy if we can clearly define it, and recognize that it extends far beyond the drawn blinds of our bedrooms.