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The Supreme Court of Canada recently clarified the meaning of “circumstances that give rise to a reasonable expectation of privacy” in a case where a teacher was criminally charged for voyeurism after secretly recording female high school students with a video pen at school.

The Facts

The accused was an English teacher in a high school in London, Ontario. In 2011, a co-worker told the principal of the school that he believed the teacher was recording female students using a hidden camera in his pen. The principal also observed the behaviour and called the police.

The teacher was charged with voyeurism contrary to s.162(1)(c) of the Criminal Code.

The electronic contents of the pen camera consisted of 35 video files. The teacher had 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 and none of them had consented to being recorded.

The police identified 27 of the individuals in the videos as female students at the high school and charged the teacher with 27 counts of voyeurism. At trial, those charges were replaced with one global charge under s. 162(1)(c) of the Criminal Code.

Section 162(1)(c) creates an offence 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.

Lower Court Decisions

The teacher was acquitted at trial because the trial judge was not satisfied beyond a reasonable doubt that the teacher 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 the teacher 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. A dissenting judge was satisfied that the students recorded by the teacher were in circumstances that give rise to a reasonable expectation of privacy and would have entered a conviction on that basis.

Issues

On appeal to the Supreme Court of Canada, the issue was whether the majority of the Court of Appeal erred in finding that the students recorded by the teacher were not in circumstances that gave rise to a reasonable expectation of privacy.

The Decision

At the outset, the majority of the court noted that the facts that the teacher surreptitiously made video recordings of female students at the high school and that he did so for a sexual purpose were not in dispute. Thus, there remained a single question in the appeal which was whether the students recorded were in circumstances that gave rise to a reasonable expectation of privacy.

The court stated that circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) 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. It found that the inquiry should take into account the entire context in which the impugned observation or recording took place and that 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.

The court stated that the list of considerations is not exhaustive and not every consideration will be relevant in every case. It said:

“The inquiry is a contextual one, and the question in each case is whether there was a reasonable expectation of privacy in the totality of the circumstances.”

After reviewing the legal context and statutory purpose and objective of s. 162(1), the court considered the specific facts of the case and concluded:

“In the case at bar, the subjects of the videos 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. Furthermore, the videos targeted individual students or small groups of students, were shot at close range, and were of high quality. Significantly, the videos had as their predominant theme or focus the bodies of students, particularly their breasts. In my view, there is no doubt that, in recording these videos, [the teacher] acted contrary to the reasonable expectations of privacy that would be held by persons in the circumstances of the students when they were recorded. I therefore conclude that the Crown has established beyond a reasonable doubt that [the teacher] recorded persons who were in circumstances that gave rise to a reasonable expectation of privacy, as that expression is used in s. 162(1) of the Criminal Code.”

As a result, the court held that the appeal should be allowed, a conviction should be entered and the matter should be remitted for sentencing.

Get Advice

Being criminally convicted can have a significant impact on your life, leading to a permanent record, significant fines, and/or jail time. This can seriously impact your reputation, your employment opportunities, and even your ability to travel outside of Canada. If you have been charged with a criminal offence, it is imperative to consult with a knowledgeable criminal defence lawyer as soon as possible to learn about your options and to protect yourself.

At Campbell Bader LLP, we can help. Our team of exceptional Mississauga criminal defence lawyers has been representing clients charged with criminal offences since 1999. We are highly skilled litigators and have conducted trials in the Superior Court and Ontario Court of Justice. We have the knowledge, experience, and skill-set to effectively defend clients charged with even the most serious of offences. We will listen, consider, and provide you with practical options. Contact us online or at 905-828-2247.