Summary

People continue to have a reasonable expectation of privacy even when they are in a public space or a space under general surveillance.

Widespread use of surveillance technology in areas open to the gaze of others does not mean there can be no reasonable expectation of privacy.

The Supreme Court of Canada has just reaffirmed that individuals in Canada rightly have an expectation of privacy, even in public areas where surveillance technology may be in use.

The Context

Private sector organizations, employers and public institutions have long taken advantage of readily-available and increasingly accurate surveillance technology. Its careful deployment for legitimate uses has been cautiously approved by the courts and privacy regulators across Canada to ensure that its privacy-invasive characteristics are kept to a minimum necessary in various circumstances.

Surveillance may be used legally, for example, to monitor the integrity of buildings and objects. It also assists in ensuring the safety and security of the persons using them. Rules that may apply include giving notice that surveillance is taking place, giving access to personal images on request and erasing images or recordings after a reasonable time period. Surveillance is also often used in the context of investigations.

However, over time the generalized recourse to various means of surveillance, from the use of sophisticated cameras to drones to web cams integrated into everyday settings has led people to expect that they may be subject to a greater degree of scrutiny or even recording when they are in a public place.

The relatively low cost and miniaturisation of surveillance technology makes it accessible to many consumers. Its ubiquitousness has led some observers to suggest that an ordinary person may not have much of an expectation of privacy when she or he is in public. Just a part of contemporary life, this school of thought said, where privacy is dead and individuals can expect to be under constant scrutiny.

Privacy Expectations in Public Places

The Supreme Court of Canada states that privacy is not an all or nothing concept in Canada. It recognizes that privacy comes with many variations and gradations, depending on a variety of factors. And importantly, by being in a public or semi-public space, a person does not have all expectations of privacy negated with regards to either observation or recording.

A recent privacy case involved interpreting the Criminal Code in regards to a category of sexual offence, voyeurism. The Crown's accusation of voyeurism against a teacher in the R. v Jarvis case was the occasion for the Supreme Court to develop, in some detail, the multiple considerations which form part of the composite expectation of privacy an individual may have in many different settings. The guidance given in this case is useful for organizations, employers and administrators who have recourse to surveillance for legitimate safety, security or other purposes, and yet who wish to ensure that individual privacy expectations are still respected.

The Circumstances of the Privacy Violation

Jarvis was a teacher in a middle-school. He used a camera hidden in a pen to take surreptitious pictures of young teen-aged women. Taking images from different angles, he focussed almost exclusively on their breasts. The students were in semi-public spaces within the school: hallways, the cafeteria, or outside but on school grounds.

The school had deployed a video surveillance system of its common areas. Signs indicated that security cameras were in use on a 24 hour basis. There was no audio recording. The school did not allow teachers to change the direction of the cameras nor access the images for their personal use. It also prohibited teachers from making personal videos of students.

Retaining Privacy in Various Settings

An element of the criminal offence of voyeurism is that it must take place in circumstances that give rise to a reasonable expectation of privacy. Can a person be in a public space or a semi-public space and still retain a reasonable expectation of privacy? Yes, said the Supreme Court of Canada, affirming that Parliament had adopted this offence especially to ensure privacy and sexual integrity in an age of ever-evolving technology.

Privacy expectations can be determined by a long list of factors. The Court listed the following and suggested there may be yet others:

  • location of the person,
  • the nature of the impugned conduct such as observation or recording,
  • awareness or consent of the person,
  • the manner in which the observation or recording was done,
  • subject matter or content of the observation or recording,
  • applicable rules, policies and regulations,
  • relationship between the person and the perpetrator,
  • purpose of the observation or recording, and
  • the personal attributes of the person observed or recorded. For example, are they children or young people?

In this case, the young students were at their school, yet subject, without their awareness or consent, to the surreptitious recording of their bodies for sexual purposes by a person whom they trusted, a teacher (who was prohibited by the school from making personal videos of students). Their reasonable expectation of privacy was infringed.

Lessons for Organizations

Organizations, employers and administrators in charge of spaces where security surveillance is employed and its use is posted must pay attention to the possible presence of invasive observational and recording technology used by persons in the space and the potential for vicarious liability for employee conduct. For employers, this means having a clear policy direction that surreptitious observation and recording of fellow employees, clients or users without their consent is, of course, prohibited.

The Jarvis decision also has important implications for shaping and potentially expanding civil liability and responsibility, in tort and otherwise, for privacy violations in Canada that require consideration of whether a plaintiff had a reasonable expectation of privacy.