The recent decision by the Court of Appeal in clarifies the developing concept of individuals’ privacy rights. The appellant was in a long distance romantic relationship with the complainant. During their relationship, the parties engaged in an intimate webcam video chat where both were naked. The appellant, unbeknownst to the complainant, took still photographs of her. After the relationship ended, the appellant emailed the nude photos to many people. At trial, he was convicted of voyeurism and he appealed this conviction.
On appeal, the Court noted that there were five elements that must be satisfied under the charge of voyeurism – (1) the accused observed or recorded the subject; (2) the accused’s observation or recording was done surreptitiously; (3) the subject was in circumstances that gave rise to a reasonable expectation of privacy; (4) the subject was nude or exposing sexual parts of her body or engaged in sexual activity; and, (5) the observation or recording of the subject was done for the purpose of recording them in such a state. The issues on appeal was whether the complainant had a reasonable expectation of privacy in the circumstances and whether the appellant acted surreptitiously.
With respect with the complainant’s subjective expectation of privacy, the Court explained that she expected that the appellant would see a fleeting image of her on her computer screen in real time. She did not know and did not expect that the appellant would make any permanent recording of her naked body. The trial judge accepted the complainant’s evidence that at no point during their relationship did the appellant advise that he was capturing permanent still images.
The Court explained that the next question was whether the complainant’s subjective expectation was reasonable in the circumstances. This question should be considered in light of the norms of conduct in our society. The Court noted that there were two norms that were particularly relevant. First, an individual’s privacy expectation for some body parts are reasonably higher than for others. The exposure of intimate body parts in the privacy of the bedroom attracted a high expectation of privacy. Second, there was a distinction between mere observation and recording a permanent image.
The Court of Appeal was satisfied that the complainant was entitled to reasonably expect the appellant would not record their sexual activities in “virtual space” without her consent. The complainant had a reasonable expectation of privacy.
The final issue was whether the recording was done “surreptitiously.” The Court noted that there was little judicial consideration of the term. The Court found that the term, within the context of a voyeurism offence, must be given its ordinary meaning - including intent. Specifically, the Court held that the mental state required by the term was the intent that the subject not be aware that she was being observed or recorded. To prosecute the charge, the Crown may prove the accused acted surreptitiously by proving that he observed or recorded the subject with the intention that they be unaware that it was happening.
The conviction was upheld.
Although the result is seemingly apparent, the legal system has not developed to a point where privacy rights are innately preserved. This decision, along with the Supreme Court of Canada’s R. v. Jarvis, illustrate the importance and societal shift toward our expectation of privacy in both the public and private sphere. In the criminal context, Courts are agreeing to punish individuals who invade another’s privacy – civil courts are likely to follow.
See 2019 ONCA 356 (CanLII)