In R. v. Jarvis, 2017 ONCA 778, the Court of Appeal for Ontario, applying principles of statutory interpretation [FN] held that for the purposes of the voyeurism offence – section 162 of the Criminal Code – the reasonable expectation of privacy of the person being secretly stared at or videoed does not include a reasonable expectation that she/he not be surreptitiously recorded or observed.
Voyeurism: Secret Recordings and Expectations of Privacy
If the fact that they are being surreptitiously recorded without their consent for a sexual purpose were enough to give rise to a reasonable expectation of privacy, that would make the privacy requirement redundant (at para. 108).
Given Huscroft J.A’s lucid dissent, I imagine that this proposition may find itself tested at the Supreme Court of Canada.
162(1) Every one commits an offence who, surreptitiously, observes – including by mechanical or electronic means – or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if
(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;
(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such activity; or
(c) the observation or recording is done for a sexual purpose.
[FN] Specifically, the common law presumption that Parliament does not legislate in vain.