The [Camera] Pen is Mightier than the Sword.

In this day and age, and the speed with which we are heading into the technology driven future, how safe are our surroundings when it comes to our privacy? From a CCTV surveillance footage that may be used to zoom in to record obnoxious footage of hapless people to those AI enabled smart devices that could record anybody’s activities without the person’s consent or knowledge, the world around us could provide a playing field for committing scary and offensive acts. One such act is committing an offence of Voyeurism. defines Voyeurism as the practice of gaining sexual pleasure from watching others when they are naked or engaged in sexual activity.

Section 162 (1) of the criminal code provides a 3-part test for a person to be charged with an offence of voyeurism:

1.   The act [of observation or recording] must be done surreptitiously;

2.   The act must be done for sexual purpose; and

3.   The act comprises of a visual recording of a person who is in the circumstances that give rise to a reasonable expectation of privacy.

The latest SCC decision in R. v. Jarvis led to the conviction of a high school teacher who admitted to have surreptitiously made the video recordings, using a pen camera, of his female students while they were engaged in ordinary school-related activities in common areas of the school. Most of the videos focused on the faces, upper bodies and breasts of female students. While the first part of the test was clear, the court of appeal ruled that the trial judge erred in failing to find that the accused did the recordings for sexual purpose. However, the court of appeal upheld the accused’s acquittal on the basis that the students were not in circumstances that give rise to a reasonable expectation of privacy. The crown appealed and the Supreme Court of Canada allowed the appeal, convicting the accused.

The following (QUOTED) nine relevant considerations were listed by the SCC in determining the circumstances that give rise to a reasonable expectation of privacy for the purpose of Section 162(1) of the Criminal Code:

(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.

Its good and consoling to know that law is gearing up fast to the ever-changing world around us. Though miles to go, one step at a time makes all the difference. 


The content of this article is intended to provide general guidance only. A specialist must be consulted for specific circumstances.  

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