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Bulletin | The HR Space

A New Possible Claim for Employees: Privacy

Fasken
Reading Time 4 minute read
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Labour, Employment and Human Rights Bulletin | HR Space

In R v Jarvis, the Supreme Court of Canada unanimously decided that a person still has a reasonable expectation of privacy even when being observed or visually recorded in a public place.[1] The decision concerned a high school teacher who was charged with the offence of voyeurism under the Criminal Code. But, it could have far-reaching implications outside the criminal realm. A majority of the Supreme Court created a framework by which individuals, including employees, can potentially assert their privacy rights against others, including co-workers and employers, when in public areas. 

Section 162(1)(c) of the Criminal Code prohibits a person from surreptitiously observing or visually recording another person who is "in circumstances that give rise to a reasonable expectation of privacy" if the observation or recording is for a sexual purpose. The teacher accused in this case made video recordings of female students using a camera concealed inside a pen. The videos focused on the upper bodies of female students, who were unaware they were being video recorded. The only question before the Supreme Court was: do high school students have a reasonable expectation of privacy when in common areas of the school, including classrooms and hallways?

According to the majority of the Supreme Court, the entire context must be examined to answer this question, including the following non-exhaustive list of considerations:[2]

  • A person expects complete privacy in certain locations. However, a person does not waive all reasonable expectations of privacy in a public location where the person expects to be observed by strangers.[3]
  • There is a fundamental difference between a person's expectations of being observed and being recorded. Recordings are permanent, can capture minute details, and can be accessed, edited, manipulated, studied, and shared.[4] 
  • A person's awareness or consent to the observation or recording is a relevant, but not determining factor. A surreptitious recording may not always breach a person's reasonable expectation of privacy. Similarly, a person's expectation of privacy may still be breached if she is being observed or recorded openly.[5]
  • A person's expectations of privacy vary depending on the nature of the observation or recording: is it fleeting or sustained? Is it aided or enhanced by technology? The use of certain technologies creates permanent records or allows a person to hear or see things that are not ordinarily visible or audible (such as a zoom function).[6] 
  • The type of activity observed or recorded is an important consideration. Courts have placed a high value on a person's expectations of personal privacy, which includes the intimate or sexualized parts of the body as well as personal information.[7]
  • Any rules, regulations, or policies that govern the observation or recording in question must also be examined. The analysis depends on whether the rule, regulation, or policy is well known or whether it aligns with established norms of behaviour.[8]
  • A person's expectation of privacy is higher where there is a relationship of trust between the person observing or recording and the person being observed or recorded. 
  • The purpose of the observation or recording affects a person's expectation of privacy. For example, there is a minimal expectation of privacy when a patient disrobes for the purpose of allowing a physician to examine him.[9]
  • Finally, a Court should take into consideration whether the person being observed or recorded is a child or young person.

After analyzing these relevant considerations, the Court determined that the female students being filmed by the accused teacher had a reasonable expectation of privacy in their school hallway and classrooms, despite being in a public place and having security cameras in the school. Interestingly, the Court also found that it would have come to the same conclusion had the accused been a stranger using a camera hidden in a pen on a public street.[10]   

Given the novelty of this framework, the implication of this decision on individual privacy rights and an individual's ability to commence a civil claim for a violation of these privacy rights remains unknown. However, with the ubiquitous and commonplace use of technology, it is likely that this area of law could potentially be used by employees to assert privacy rights at the workplace, even in "public" areas of the workplace, depending on whether the employee can be said to have an expectation of privacy according to the framework developed by the Supreme Court.


[1]  R v Jarvis, 2019 SCC 10 at para 37, 131.

[2]  Ibid at para 28-29.

[3]  Ibid at para 61.

[4]  Ibid at para 62.

[5]  Ibid at para 33.

[6]  Ibid at paras 63, 75, 81.

[7]  Ibid at paras 65-66, 82.

[8]  Ibid at para 83.

[9]  Ibid at para 31.

[10]  Ibid at para 90

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