I guess if I ever find myself in Canada (again) I'll wall around in public with my fingers stuck in both my ears....
Here's the list of considerations that the Supreme Court came up with. They said not all may apply and there may be other considerations depending on the case:
- the location where the observation or recording occurred;
- the nature of the impugned conduct: whether it consisted of observation or recording;
- the awareness or consent of the person who was observed or recorded;
- the manner in which the observation or recording was done;
- the subject matter or content of the observation or recording;
- any rules, regulations, or policies that governed the observation or recording in question;
- the relationship between the person who was observed or recorded and the person who did the observation or recording;
- the purpose for which the observation or recording was done; and
- the personal attributes of the person who was observed or recorded, that is, whether the person was a child or young person.
The case in question was a high school teacher caught filming female students, primarily their chests, while at school. He was using a camera pen, essentially a hidden camera. He was charged with voyeurism which requires that the recording was done for a sexual purpose and that there was a reasonable expectation of privacy.
Trial court found that there was a reasonable expectation of privacy as it was done in a school, during school hours and in a classroom despite the school classrooms being a public place. However, they couldn't prove beyond a reasonable doubt that it was done for a sexual purpose.
The Crown (that Canuck speak for state prosecutor) appealed. Two of the three Appeals court judges found that, yes, there was a sexual purpose but there was no reasonable expectation of privacy. The third judge dissented. Off we go to the Supreme Court of Canada.
The SCC unanimously decided that there was a reasonable expectation of privacy and this clown was convicted.
So it's not cut and dried. Very subjective and just the initial list of 9 makes for some good balance for the expectation of privacy in a public, or semi-public, place.
Short answer is, the lawyers always win in the end! lol