Canada’s top court is set to hear the case on Friday of a high school teacher acquitted of voyeurism even though he used a pen camera to secretly record video of the chest area of his female students.
The case raised eyebrows when the trial judge decided Ryan Jarvis, of London, Ont., had violated the teens’ privacy but had no sexual intent in doing so.
The Ontario Court of Appeal — in a split decision — disagreed with the judge on both key points, but nevertheless upheld the acquittal. While Jarvis was surely sexually motivated, the Appeal Court said, the students had no reasonable expectation of privacy at school where the filming occurred.
In its appeal to the Supreme Court of Canada, the prosecution maintains the Appeal Court’s view of privacy was far too narrow.
“The students had a reasonable expectation that they were in circumstances where their privacy interests related to their sexual integrity would be protected,” the government says in its written filing. “Here the impact of the recording on the students’ dignity and sexual integrity was significant.”
Jarvis, however, maintains the students were in classrooms or other common areas where anyone could observe them. Concluding they had a reasonable privacy expectation, he says, could see the criminalization of a wide range of conduct, such as staring at someone from behind tinted sunglasses.
“Reasonable people can debate whether all surreptitious recording of people for a sexual purpose should be made a criminal offence,” Jarvis says. “(But) the court should be very hesitant to expand the concept of ‘reasonable expectation of privacy’…lest it disturb the delicate balance the courts have attempted to strike between the interests of the state and the individual.”
Police charged the English teacher with voyeurism for recordings he made in 2010 and 2011 as he chatted with 27 female students aged 14 to 18. The offence requires two key elements: the accused must be sexually motivated and the target must have a reasonable expectation of privacy.
In November 2015, Superior Court Justice Andrew Goodman decried the teacher’s behaviour as “morally repugnant and professionally objectionable.” Goodman found the students did have a reasonable expectation of privacy but, in a strange twist, acquitted Jarvis on the basis he had no sexual purpose.
“While a conclusion that the accused was photographing the students’ cleavage for a sexual purpose is most likely,” Goodman found, “There may be other inferences.”
The Crown argued on appeal that sexual motivation was a no-brainer: The subjects were young females and Jarvis had deliberately pointed his camera at their breasts.
The majority on the Appeal Court agreed. However, in upholding the acquittal in October, justices Kathryn Feldman and David Watt decided the teens had no reasonable expectation of privacy.
“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,” the justices said.
Justice Grant Huscroft dissented, writing that the privacy interests of the students outweighed the interests of those who would compromise their personal and sexual integrity at school.
“Privacy expectations need not be understood in an all-or-nothing fashion,” Huscroft said, drawing on an example of a mother breast-feeding in public. “There is a reasonable expectation that she will not be visually recorded surreptitiously for a sexual purpose.”
In its appeal to the Supreme Court, the prosecution seized on Huscroft’s dissenting opinion.
“The majority was so focused on a conception of reasonable expectation of privacy based on the ability to exclude others from a location, they failed to appreciate that the trust relationship, along with a school board policy, was a significant factor which gave rise to a reasonable expectation of privacy,” the government argues.
The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, one of eight interveners in the case, urged the Supreme Court to convict Jarvis.
“The Ontario Court of Appeal’s majority decision in this case sets a dangerous precedent in terms of the privacy, bodily and sexual integrity, and equality of young Canadians in schools, with especially disturbing implications for girls and young women,” the foundation says.
The Ontario College of Teachers suspended Jarvis in 2013 for failing to pay his dues. He still faces a professional misconduct hearing.
Colin Perkel, The Canadian Press