Tuesday, June 11, 2019
Interpreting the Reasonable Expectation of Sexual Privacy in Canada's Digital Technology Criminal Laws
Moira Aikenhead, A '"Reasonable" Expectation of Sexual Privacy in the Digital Age, 41 Dalhousie L.J. 274 (2018)
Two Criminal Code offences, voyeurism, and the publication of intimate images without consent, were enacted to protect Canadians’ right to sexual privacy in light of invasive digital technologies. Women and girls are overwhelmingly targeted as victims for both of these offences, given the higher value placed on their non-consensual, sexualised images in an unequal society. Both offences require an analysis of whether the complainant was in circumstances giving rise to a reasonable expectation of privacy, and the use of this standard is potentially problematic both from a feminist standpoint and in light of the rapidly evolving technological realities of the digital age. This article proposes a feminist-inspired, technology-informed approach to the reasonable expectation of privacy standard in relation to these offences, and examines the extent to which the Supreme Court of Canada’s recent voyeurism decision, R. v. Jarvis, aligns with this approach.