This article was first published on rabble.ca

In R v Jarvis, an Ontario high school teacher was charged with voyeurism after secretly taking videos of his female students’ chests with a camera pen. Intuitively, Jarvis’ actions seem wrong. But the trial court and Court of Appeal acquitted him. The Supreme Court overturned those decisions and convicted Jarvis, updating the analysis of “reasonable expectation of privacy” in the process.

The offence

Jarvis was charged with voyeurism under s. 162(1)(c) of the Criminal Code. Voyeurism was introduced to the Code in 2005 to address people being observed or recorded without their knowledge — a growing issue as technology advances. Voyeurism was intended to prevent sexual exploitation and protect the privacy of individuals. R v Jarvis is the first time the offence has come before the Supreme Court.

The decisions to acquit

Under 162(1)(c), the Crown had to prove, beyond a reasonable doubt, that there was an observation or recording that was made:

• surreptitiously
• in circumstances giving rise to a reasonable expectation of privacy, and
• for a sexual purpose.

At trial, the judge found that the recordings were made surreptitiously, and that the students had a reasonable expectation of privacy but, curiously, found it had not been proven that the recordings were made for a sexual purpose.

The Court of Appeal found that the recordings were made surreptitiously and for a sexual purpose, but the students did not have a reasonable expectation of privacy. Because the students were in school, they could be observed by anyone and even recorded by school surveillance cameras, so this element of the offence was not satisfied. The acquittal was upheld.

The conviction

The Supreme Court decided to convict Jarvis. By this time, the only element at issue was whether the recordings took place in circumstances giving rise to a reasonable expectation of privacy. The Court unanimously rejected the Court of Appeal’s location-based approach to the reasonable expectation of privacy, but was split on which test to apply instead.

Contextual analysis of the majority

The majority took a contextual approach to reasonable expectations of privacy, introducing a non-exhaustive list of factors to consider which may include: the location, the manner in which the recording or observation was done, the subject matter, the purpose, the relationship between the parties, and the personal attributes of the person who was recorded. These are only some of the nine factors considered by the majority and this is not a closed list of factors for future cases.

Among other factors, the majority considered the fact that the recordings focused on private body parts, the trust relationship between teacher and students, the age of the students, and that the recordings also breached school policies. The majority was left in “no doubt” that the students had a reasonable expectation of privacy in these circumstances.

Sexual integrity analysis of the minority

The minority rejected the majority’s approach and said those factors should instead be considered with other elements of the offence or in sentencing.

Instead, the minority looked at the purpose of the voyeurism offence and its place within the Code under “Sexual Offences.” The purpose of sexual offences is “to protect the personal autonomy and sexual integrity of the individual” and it is here where the analysis of reasonable expectations of privacy ought to focus.

The minority introduced a two-part test: did the observation or recording (a) diminish the subject’s ability to maintain control over their image, and (b) infringe on the sexual integrity of the subject? The control part of the test refers to personal information that the individual chooses to display, and how and to whom that information is presented. The sexual integrity part should be considered similarly to other sexual offences, such as sexual assault, on an objective basis considering all of the circumstances.

Here, the students lost control over the proximity and angles that their bodies were observed by Jarvis’ use of the pen camera, and their sexual integrity was infringed due to the focus on intimate body parts and sexual purpose of the recordings.

Too far or not far enough?

The Supreme Court decision came as a welcome departure from the Court of Appeal’s narrow reading of the “reasonable expectation of privacy” and its implications for privacy rights in public or semi-public spaces.

The majority’s contextual approach provides flexibility to address what will surely be a multitude of situations to which the voyeurism offence may apply, considering the evolving technologies that may be used for surreptitious observations or recordings. Encouraging an exploration of all of the factors and the context that may give rise to a reasonable expectation of privacy helps maintain the offence’s value within the Criminal Code.

That being said, the open-ended list of factors set out by the majority does not offer much clarity for judges applying the test in the future. Starting with an analysis of the nine factors and then adding other factors seems onerous, but leaving out a consideration of one of the factors suggested by Jarvis may open the decision up to appeal. In this case, the just outcome may seem obvious, but one could imagine a case with more moral ambiguity where a decision‑maker would appreciate more clarity and guiding principles for analysis.

The minority presents a more straightforward test for the reasonable expectations of privacy. It brings the focus back to the purpose of creating the offence and situates it within the Criminal Code. Most importantly, it keeps the focus of the test on the sexual integrity of the person who is the subject of the observation or recording.

Interveners at the Supreme Court in this case presented the gendered dimension of the voyeurism offence and its disproportionate effects on girls and women. The Consultation Paper from the government echoes this by acknowledging that, with these crimes, “women and children are almost always the victim.” Some have criticized Jarvis for falling short of declaring voyeurism a form of gendered violence.

It is true that the minority’s reasons also fail to address the gendered aspect of voyeurism, but concentrating on the sexual integrity of the subject of the observation or recording keeps the focus of the analysis on that person’s experiences and the impacts of the offence. This frames the issue in a way that more readily invites a gendered analysis as the case law develops, focusing on the harm that is perpetuated by voyeurism and other sexual offences in our society.

Filed in: Uncategorized

Tags: Privacy, Supreme Court of Canada, Voyeurism