Supreme Court voyeurism decision a precedent-setting ‘no-brainer’: expert

Power Play: SCC rules on voyeurism case Canadian Internet Policy and Public Interest Clinic's David Fewer discusses the SCC precedent-setting ruling on a voyeurism case.

On Feb. 14, the Supreme Court of Canada ruled that when an Ontario high school teacher secretly filmed his female students’ chests, he was committing the crime of voyeurism.

That verdict -- which came after two lower courts had ruled in the teacher’s favour -- was a “no-brainer” and a “good decision” says David Fewer, director of the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa’s Centre for Law, Technology and Society.

“We’re glad to see the Supreme Court set it straight today,” Fewer, who also teaches intellectual property and technology law, told CTV Power Play host Don Martin.

At issue in the case was what exactly constitutes an alleged victim’s reasonable expectation of privacy.

The judges in the two earlier cases, the lawyer explained, adopted a “kind of narrow vision of privacy,” meaning that “privacy means secrecy; privacy means in private and not in public; privacy means if you know that there’s a camera, then you can absolutely have no reasonable expectation of privacy.”

The Supreme Court, however, adopted “a more expansive vision of privacy… that says, no, no, no: privacy is a fundamental part of what it means to be a free and democratic country and we’re going to look at the wider context about when we have a reasonable expectation of privacy,” Fewer said.

Its Feb. 14 decision, Fewer suggested, will be precedent-setting. To illustrate that, he described the example of a public swimming pool.

“You know when you go to a pool that the people around you are going to see your body and see you and you’ve got no expectation of privacy there,” he said. “But what you don’t expect, what’s not part of that context, is that someone’s going to take your photograph or a video recording of you and upload that to the internet, or share it, or even take it home for their own prurient interest -- their own sexual kicks.”

Thanks to the Supreme Court, Fewer said, Canadians now have more protections against would-be voyeurs in public places.

“So what this Court does is say, let’s look at the context: what is your expectation within that context, and did what the accused do take you out of the reasonable expectation of privacy you have there,” Fewer explained. “And so we do have a situation now about when you’re in public, when you’re at the pool, or when you’re just on the street, the court actually says this: when you’re on the street and someone takes a photograph of you and removes it from that context and uses it for a sexual purpose, that the criminal provision is engaged.”