In the 2010-2011 school year, a teacher at a London, Ontario high school used a pen camera to make surreptitious video recordings of female students, with a particular emphasis on their cleavage and breasts. A colleague noticed his activity and reported it to the principal, who confiscated the pen camera and called the police. The police found 19 videos on the camera’s memory card, featuring 30 different individuals, 27 of whom were female. A warrant was obtained a week later to search the teacher’s home – the police found nothing beyond a computer mysteriously missing its hard drive. The teacher was ultimately charged with voyeurism.

The offense of voyeurism requires that there be a surreptitious observation (recorded or not) of a “person who is in circumstances that give rise to a reasonable expectation of privacy”. It also requires that the “observation or recording is done for a sexual purpose” (Criminal Code, s. 162(1)(c)). The trial judge had found that the students had a reasonable expectation of privacy in the circumstances, but he inexplicably found that the Crown had not met its burden of showing, beyond a reasonable doubt, that the recordings of their cleavage and breasts was done for a sexual purpose. He stated: “While a conclusion that the accused was photographing the student’s [sic] cleavage for a sexual purpose is most likely, there may be other inferences to be drawn that detract from the only rationale [sic] conclusion required to ground a conviction for voyeurism.” (Trial Decision at para 77) He did not provide any information about what those other inferences might conceivably be.

On appeal, the Crown argued that the trial judge had erred in finding that the filming was not done for a sexual purpose. All of the appellate judges agreed that the judge had indeed erred. The majority noted that the trial judge had failed to identify any other possible inferences in his reasons. They also noted that his description of the teacher’s behavior as “morally repugnant” was “inconsistent with the trial judge’s conclusion that the videos might not have been taken for a sexual purpose.” (Court of Appeal decision at para 47) The majority noted that “[t]his was an overwhelming case of videos focused on young women’s breasts and cleavage” (at para 53), and they concluded that there was no reasonable inference other than that the videos were taken for a sexual purpose. Clearly, the teacher was not checking for skin cancer.

However, the accused had appealed the trial judge’s finding that the students had a reasonable expectation of privacy. The majority of the Court of Appeal agreed, leading to the overall appeal of his acquittal being dismissed. The majority’s reasoning is disturbing, and has implications for privacy more broadly. In determining what a ‘reasonable expectation of privacy’ entailed, the majority relied on a definition of privacy from the Oxford English Dictionary. That learned non-legal tome defines privacy as “a state in which one is not observed or disturbed by other people; the state of being free from public attention.” (at para 93). From this, the majority concluded that location was a key component of privacy. They stated: “A person expects privacy in places where the person can exclude others, such as one’s home or office, or a washroom. It is a place where a person feels confident that they are not being observed.” (at para 94) The majority accepted that there might be some situations in which a person has an expectation of privacy in a public setting, but these would be limited. They gave the example of upskirting as one “where a woman in a public place had a reasonable expectation of privacy that no one would look under her skirt” (at para 96). Essentially, the tent of a woman’s skirt is a private place within a public one.

The trial judge had found a reasonable expectation of privacy in the circumstances on the basis that a student would expect that a teacher would not “breach their relationship of trust by surreptitiously recording them without there consent.” (at para 103). According to the majority, this conflated the reasonable expectation of privacy with the act of surreptitious recording. They stated: “Clearly students expect that a teacher will not secretly observe or record them for a sexual purpose at school. However, that expectation arises from the nature of the required relationship between students and teachers, not from an expectation of privacy.” (at para 105) This approach ignores the fact that the nature of the relationship is part of the context in which the reasonableness of the expectation of privacy must be assessed. The majority flattened the concept of reasonable expectation of privacy to one consideration – location. They stated that “if a person is in a public place, fully clothed and not engaged in toileting or sexual activity, they will normally not be in circumstances that give rise to a reasonable expectation of privacy.” (at para 108)

Justice Huscroft, in dissent is rightly critical of this impoverished understanding of the reasonable expectation of privacy. He began by situating privacy in its contemporary and technological context: “Technological developments challenge our ability to protect privacy: much that was once private because it was inaccessible is now easily accessible and capable of being shared widely.” (at para 116). He observed that “whether a person has a reasonable expectation of privacy is a normative or evaluative question rather than a descriptive or predictive one. It is concerned with identifying a person’s legitimate interests and determining whether they should be given priority over competing interests. To say that a person has a reasonable expectation of privacy in some set of circumstances is to conclude that his or her interest in privacy should be prioritized over other interests.” (at para 117)

Justice Huscroft was critical of the majority’s focus on location as a means of determining reasonable expectations of privacy. He found that the majority’s approach – defining spaces where privacy could reasonably be expected – was both over and under-inclusive. He noted that there are public places in which people have an expectation of privacy, even if that expectation is attenuated. He gave the example of a woman breastfeeding in public. He stated: “Privacy expectations need not be understood in an all-or-nothing fashion. In my view, there is a reasonable expectation that she will not be visually recorded surreptitiously for a sexual purpose. She has a reasonable expectation of privacy at least to this extent.” (at para 125) Justice Huscroft also noted that the majority’s approach was over-inclusive, in that while a person has a reasonable expectation of privacy in their home, it might be diminished if they stood in front of an open window. While location is relevant to the privacy analysis, it should not be determinative.

Justice Huscroft found that the question to be answered in this case was “should high school students expect that their personal and sexual integrity will be protected while they are at school?” (at para 131). He noted that schools were not fully public in the sense that school officials controlled access to the buildings. While the school in question had 24-hour video surveillance, the cameras did not focus on particular students or particular body parts. No access was permitted to the recordings for personal use. The school board had a policy in place that prohibited teachers from making the types of recordings made in this case. All of these factors contributed to the students’ reasonable expectation of privacy. He wrote:

No doubt, students will be seen by other students, school employees and officials while they are at school. But this does not mean that they have no reasonable expectation of privacy. In my view, the students' interest in privacy is entitled to priority over the interests of anyone who would seek to compromise their personal and sexual integrity while they are at school. They have a reasonable expectation of privacy at least to this extent, and that is sufficient to resolve this case. (at para 133)

Justice Huscroft observed that the majority’s approach that requires the reasonable expectation of privacy to be considered outside of the particular context in which persons find themselves would unduly limit the scope of the voyeurism offence.

This case provides an ugly and unfortunate window on what women can expect from the law when it comes to voyeurism and other related offenses. In the course of his reasons, the trial judge stated that ““[i]t may be that a female student’s mode of attire may attract a debate about appropriate reactions of those who observe such a person leading up to whether there is unwarranted and disrespectful ogling” (Trial decision, at para 46). The issue is not just about public space, it is about the publicness of women’s bodies. The accused was acquitted at trial because of the trial judge’s baffling conclusion that the teacher might have had some motive – other than a sexual one – in making the recordings of female students’ breasts and cleavage. Although the Court of Appeal corrected this error, the majority found that female students at high school do not have a reasonable expectation of privacy when it comes to having their breasts surreptitiously filmed by their teachers (who are not allowed, under school board policies, to engage in such activities). The majority fixates on location as the heart of the reasonable expectation of privacy, eschewing a more nuanced approach that would consider those things that actually inform our expectations of privacy.