Voyeurism

Canada’s Highest Court Finds Teacher Guilty of Voyeurism for Secretly Recording Students’ Cleavage

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada ruled last week that an Ontario high-school teacher, Ryan Jarvis (“Jarvis”), is guilty of voyeurism for using a pen camera to secretly take videos of female students.

The highest court in Canada decided that the teenage students were entitled to a reasonable expectation that they would not be surreptitiously recorded by their teacher.

WHAT HAPPENED?

Jarvis was charged with the criminal offence of voyeurism (section 162(1)(c) of the Criminal Code) after it was discovered that he had taken videos of female students’ faces, chests, and cleavage area with his pen at a high school in London, Ontario.

These videos were recorded during 2010 and 2011 and took place throughout the school, including the hallways, classrooms, cafeteria, staff offices, and even outside of the building. The 27 students who were filmed by Jarvis ranged in age from 14 to 18 years old and did not know that they were being recorded.

At trial in 2015, Jarvis was acquitted as the trial judge held that while the students had a reasonable expectation of privacy, it was not clear that the videos were taken for a sexual purpose.

As we have previously blogged, the Ontario Court of Appeal dismissed the Crown’s challenge of the trial judge’s ruling and upheld Jarvis’ acquittal. The majority of the appeal court found that the videos were taken for a sexual purpose, however, the court found that the students should not have an expectation of privacy in areas of the school where they congregate or learn.

At the Court of Appeal, there was one dissenting judge who was convinced that the students were entitled to a reasonable expectation of privacy in the circumstances and would have entered a conviction on that basis.

This dissenting opinion at the appeal court level allowed the Crown prosecutor a right to appeal the decision to the Supreme Court of Canada. Therefore, the issue before the Supreme Court was whether the Court of Appeal erred in finding that the students recorded by Jarvis should not have a reasonable expectation of privacy in the circumstances and for the purposes of section 162(1) of the Criminal Code.

The offence of voyeurism as set out in the Criminal Code is committed when a person surreptitiously observes or makes a visual recording of another person who is in “circumstances that give rise to a reasonable expectation of privacy”, and in Jarvis’ case the observation or recording is done for a sexual purpose.

WHAT DID THE SUPREME COURT OF CANADA DECIDE?

The nine judges of the Supreme Court of Canada all agreed that Jarvis should be found guilty, although there were two different lines of reasoning followed by the judges in coming to this decision.

The majority of the Supreme Court emphasized that the offence of voyeurism was predicated on concerns of rapidly developing technology, which may be abused for the purpose of secret viewing or recording for a sexual purpose and involving a breach of privacy.

Chief Justice Richard Wagner, writing for the majority of the court, provided a non-exhaustive list to assist a court in determining whether a person was observed or recorded in circumstances that give rise to a reasonable expectation of privacy, including:

  • The location the person was in when he/she was observed or recorded;
  • The nature of the conduct (either an observation or recording);
  • Awareness of or consent to potential observation or recording;
  • The manner in which the observation or recording was made;
  • 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 observing or recording;
  • The purpose for which the observation or recording was made; and
  • The personal attributes of the person who was observed or recorded.

The majority of the court was satisfied that the students that had been recorded were in circumstances that give rise to a reasonable expectation of privacy based upon the following considerations:

  • the location of the recording;
  • the fact that the impugned conduct was a recording rather than mere observation;
  • the manner in which the videos were recorded;
  • the fact that that these students were unaware that they were being recorded;
  • the content of the videos which focused on intimate parts of the students’ bodies;
  • a school board policy prohibiting this type of recording;
  • the fact that the recordings were made in breach of a relationship of trust between Jarvis and his students;
  • Jarvis’ purpose in making the recordings; and
  • the fact that the individuals who were recorded were young persons.

Chief Justice Wagner wrote:

The explicit focus of the videos on the bodies of the students recorded, including their breasts, leaves me in no doubt that the videos were made in violation of the students’ reasonable expectations of privacy.

Justice Wagner made it clear that the concept of privacy is “not an all-or-nothing-concept” and “being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording”.

Justice Rowe, writing for the minority judges, stated:

Had Jarvis placed himself in the position of the pen-camera and simply observed the students, they would undoubtedly have recoiled. It was reasonable in the circumstances for the students to expect not to be observed and recorded in the way that they were.

The Court has confirmed that it is illegal for teachers to secretly take pictures or video of their students for a sexual purpose, even if the students are in a public area or in view of the school’s security cameras.

WHAT HAPPENS NEXT?

Given the findings by the Supreme Court of Canada, a conviction has been entered against Jarvis and he awaits his sentence.

Jarvis is also facing a disciplinary hearing from the Ontario College of Teachers for allegations of sexual, psychological, and emotional abuse, in addition to unprofessional conduct.

We will provide updates regarding this case in this blog as information becomes available.

In the meantime, if you have any questions regarding voyeurism charges laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges. We offer a 24-hour telephone service and we are available when you need us most.

Acquittal Upheld for Ontario Teacher Who Secretly Videotaped Female Students

Written on Behalf of Affleck & Barrison LLP

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.

WHAT HAPPENED?

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.