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Redefining our privacy expectations

The SCC’s recent Jarvis ruling will have broad effects, particularly in the grey areas, on the use of surveillance technology.

Two women facing security camerax above mounted on wall
Photo by Matthew Henry on Unsplash

As technology pervades every area of life, the line between private and public is sometimes difficult to define—particularly when drawing on laws written before the advent of smartphones and social media. The recent Supreme Court Decision in R v Jarvis tackled what reasonable expectation of privacy looks like in a wired world.

A high school teacher was charged with voyeurism after using a concealed camera (hidden inside a pen) to record images of his female students’ body parts, including their cleavage. Lower courts had followed a location-based approach to the decision, inferring that a high school (where the recordings took place) was a public space. The Supreme Court rejected this approach and used its decision to develop a new framework for analysis of such cases.

The decision listed nine contextual factors to be taken into account when evaluating whether a person’s reasonable expectation of privacy has been violated. The factors include the location of the act, whether technology was involved, the relationship between the parties, the purpose of the observation or recording, and its content.

“I think that one of the things that has been really unclear in terms of reasonable expectation of privacy is how you navigate that in light of new technologies,” says Dr. Emily Laidlaw, an associate law professor at the University of Calgary. “Jarvis is significant because it moves us away from the idea of this location-based approach to privacy, and it gives you this guidance about well, what does contextual analysis look like when we’re in a world where technology is constantly surrounding us and constantly changing?”

Following the decision, Laidlaw published a paper in which she writes: “Jarvis’ strength is in providing a roadmap for how to do a contextual analysis in a world of evolving technologies. Rather than being technologically blind, it is technologically mindful, if you will.”

This “mindfulness” is found, Laidlaw says, in the deliberate non-specificity of the technology discussed in the ruling. “What the Supreme Court of Canada did—which I thought was quite smart—was to give us a way to navigate the relationship with technology,” she explains. “So instead of focusing on a specific type of technology, it was mindful of it, to the extent that what that relationship is was the focal point of the legal analysis.

“I think that that gives a lot of flexibility to the law going forward, but equally gives us guidance about what privacy means.”

This guidance, she expects, will exert influence over what are considered reasonable expectations in both the public and private spheres. “There is abuse online, where things are revealed about people, where you see mob attacks, or revenge pornography and, yes, these may have been covered under the existing torts. But what about a person who posts a fake escort ad with a photo of his ex on Kijiji? That wouldn’t have been so easily covered.”

She cites domestic abuse as one area where new technology is increasingly a factor. “You might have a spouse who can control and monitor doors opening and shutting, or the temperature in the house,” she explains. “It becomes this state of surveillance. Jarvis gives some guidance in how to look at a scenario such as that— the relationship between people and technology and the experience of their privacy in their day-to-day non-public life being invaded.”

Halifax-based privacy lawyer David Fraser also welcomes the nuance and the added complexity that comes with this development in privacy law. He expects the decision to have an impact in both civil and criminal cases.

“Most casinos in Canada have to have very elaborate surveillance systems in order to catch people cheating, so that’s a completely normal purpose,” he proffers as an example. “But if you have a security person who was using those high-resolution cameras to look down women’s blouses, then that would be for a sexual purpose, and that would be violating their expectation of privacy—it would render that criminal.

“In other words, in this case, a relatively innocuous technology is being used for a purpose that violates that expectation of privacy.”

According to Fraser, Jarvis also makes it explicit that technology has a role to play even outside the criminal context.

“You operate a clothing store and you’re concerned, for example, about shoplifting in the changing areas,” he suggests. “If you follow the analysis, it would be more reasonable to put a security guard near the change rooms than it would a hidden camera because the camera in that space makes a difference.

“So you might think that if you really need cameras there, you should make them very conspicuous. You’re not going to take away somebody’s expectation of privacy, but you might be able to diminish it by making it clear to everybody that yes, there is recording that’s taking place here, and that by entering this zone they are acknowledging that and consenting to some capturing of their image.”

It is, he says, not in the extreme cases where Jarvis will have the most impact, but in the grey areas.