The Ontario Court of Appeal upheld a trial court’s decision to acquit a teacher who used a camera pen to video record the chest and cleavage of his female students. The top court in Ontario found that although the recording had been done for sexual purposes and was therefore inappropriate, the students had no reasonable expectation of privacy.
High school teacher, Ryan Jarvis, used a camera pen to video record the chest and cleavage of female students and one female teacher. The secret recordings were made in various locations in and around the school and involved 27 female students aged 14 to 18. Jarvis was observed by the principal of the school talking to a female student while holding a pen with a flashing red light at its top. The principal seized the pen and sent it to the police. The police found several recordings of female students focused on their breasts stored on the pen.
Jarvis was charged with voyeurism under section 162(1)(c) of the Criminal Code of Canada (“CC”).
In November 2015, Superior Court Justice Andrew Goodman found Jarvis not guilty of that offence. Justice Goodman held that Jarvis’ behaviour had been “morally repugnant and professionally objectionable”, but he did not find that the videos were sexually motivated.
The Crown prosecutor appealed this ruling and argued that Jarvis’ behaviour was sexually motivated since the subjects were all females and the camera was deliberately focused on their breasts.
The Court of Appeal was unanimous in concluding that the recording was both “surreptitious” and “done for a sexual purpose”. However, the majority of the Court found that the recording was made under circumstances that did not give rise to a reasonable expectation of privacy and therefore upheld Jarvis’ acquittal at trial.
The majority of the Court stated “that we live in an open society where visual interaction is part of everyday life and is valued” and that students know they can be observed in places where they gather.
If a person is in a public place, fully clothed and not engaged in toileting or sexual activity, they will normally not be in circumstances that give rise to a reasonable expectation of privacy.
WHAT IS VOYEURISM?
The criminal offence of voyeurism was added to the CC in 2005 to address public concerns that technology could be used to easily spy on individuals for sexual purposes.
According to section 162 of the CC, the offence of voyeurism can be committed in two ways, either through observation or by visual recording.
There are two separate conditions that must exist in order to be convicted of the offence of voyeurism:
- the “surreptitious” nature of the observation/recording; and
- the reasonable expectation of privacy.
The secret observation or recording must capture the image of a person’s genitals and/or breasts or sexual activity, or the observation/recording must occur for a sexual purpose.
It is also a crime to print, copy, publish, distribute, circulate, sell, advertise or make available the recording or image that was secretly obtained.
A secret or “surreptitious” recording has been interpreted by the courts using its ordinary dictionary meaning. Some examples of surreptitious recordings that have been prosecuted as voyeurism include:
- Video images captured by a camera concealed in a stepdaughter’s bedroom;
- Video recording of teenage girl in a hotel shower by a camera concealed in a shaving bag;
- Video images captured by a camera hidden in a wastebasket in an office washroom; and,
- Video images of a man at a urinal in an office washroom taken through a cubicle.
Voyeurism is considered a hybrid offence. If the Crown proceeds by way of indictment (most serious), the maximum sentence is five years imprisonment. If the Crown proceeds by summary conviction, the maximum sentence is six months imprisonment.
A person convicted of voyeurism will be placed on Canada’s sexual offender registry for at least 10 years. A person convicted of multiple counts of voyeurism will placed on the registry for life.
If you are facing voyeurism charges, or charges related to any other sexual offences, or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. For your convenience, we offer 24-hour phone services. We are available when you need us most.