Canada: Teacher With Camera Pen Acquitted Of Voyeurism

In a recent criminal case in the Ontario Court of Appeal, a teacher was acquitted on a charge of voyeurism under section 162 of the Criminal Code despite having surreptitiously recorded 27 female students between ages 14 and 18 at the school where he taught. As detailed below, the majority of the Court of Appeal concluded that the Crown did not prove the element of the voyeurism offence which requires circumstances that give rise to a reasonable expectation of privacy.


In R. v. Jarvis, 2017 ONCA 778, the accused was a high school teacher in Ontario. He was observed at school in conversation with a student while holding a pen with a flashing light on the top. The pen was confiscated by the principal and turned over to the police. The police officer conducted a cursory search of the pen, prior to obtaining a search warrant, which revealed a recording of female students with a focus on their breasts and cleavage. After obtaining a warrant, police searched the pen and found 19 videos with 30 different individuals, 27 of whom were female students, at the school.

The teacher was charged with voyeurism under section 162(1)(c) of the Criminal Code, which states:

162(1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(c) the observation or recording is done for a sexual purpose.

The accused conceded that he had made the recordings on his camera pen surreptitiously, and that the students were unaware of the recordings. The trial judge determined that the recordings were made in circumstances that gave rise to a reasonable expectation of privacy; however, he found that there could be other inferences to be drawn aside from making the recordings for a sexual purpose. The trial judge therefore acquitted the accused of all charges.

Issues Before the Court of Appeal

The Crown appealed the acquittal and argued the trial judge had erred by deciding the recordings were not made for a sexual purpose. The accused also argued that the trial judge had erred in admitting the contents of the camera pen because of the warrantless search. He also submitted that the trial judge erred in finding that the circumstances of the recordings gave rise to a reasonable expectation of privacy by the students.

The Court of Appeal was unanimous in its finding that the trial judge had erred when he found that there could have been some other purpose for the recordings. The trial judge had improperly focused on facts such as there being no other pornographic material found in the accused's possession, the fact that there was no nudity and that the camera pen could not zoom or enhance its focus. Yet he found that the teacher's behaviour was "morally repugnant and professionally objectionable." The Court of Appeal took a clear stance on the sexual purpose of the recordings, with particular emphasis on the fact that the accused is a teacher who took advantage of his position and breached the teacher-student trust relationship:

[46]      The respondent took advantage of his position as a teacher to make surreptitious videos of his teenaged female students. At least five of the videos focused on the cleavage of those female students. He was taking close up, lengthy views of their cleavage from angles both straight on and from above. The trial judge found that while it was most likely that the respondent was photographing female students' cleavage for a sexual purpose, "there may be other inferences". However, he failed to identify any such inference anywhere in his reasons. With respect to the trial judge, there were no other inferences available on this record.

[47]      As the trial judge stated, this conduct by the respondent was morally repugnant. That finding is inconsistent with the trial judge's conclusion that the videos might not have been taken for a sexual purpose. The reason the teacher's conduct was morally repugnant was because of the sexual impropriety of taking surreptitious pictures of the breasts of his female students. Had he been taking surreptitious pictures of only their faces, his conduct would have been unacceptable as a breach of the teacher-student trust relationship, but not morally repugnant because of sexual impropriety.

The Court of Appeal was also unanimous in finding that the trial judge did not err in admitting evidence obtained by police without a warrant. Police had breached the accused's rights under section 8 of the Charter of Rights and Freedoms, which prohibits unreasonable search and seizure. However, the Court of Appeal agreed with the trial judge's decision to admit the evidence under section 24(2) of the Charter, in part because of the teacher's diminished expectation of privacy regarding the camera pen. As the Court stated, the teacher was using the camera pen at school, where the school board had supervisory jurisdiction over him and had a policy against making recordings. His camera pen was subject to search and seizure by the school board. The public interest factor of determining whether to admit evidence obtained in breach of section 8 also related strongly to the nature of a teacher's position. The Court concluded that the offence involved "multiple breaches of trust by a high school teacher, which heightens the public interest in its prosecution."

However, the Court of Appeal split its decision on the remaining issue. The majority decided that the trial judge had erred in concluding that the recordings were made "in circumstances that give rise to a reasonable expectation of privacy". This is an element of the voyeurism offence in section 162(1)(c), and the teacher was therefore acquitted. 

The majority of the Court concluded that in certain areas of the school, students do not have an expectation that they will not be observed or watched:

[104]   It is clear that students expect a school to be a protected, safe environment. It should be a place where their physical safety, as well as their personal and sexual integrity is protected. However, the areas of the school where students congregate and where classes are conducted are not areas where people have any expectation that they will not be observed or watched. While access to school property is often restricted, access is granted to students, teachers, other staff, and designated visitors. Those who are granted access are not prohibited from looking at anyone in the public areas. Here there were security cameras in many locations inside and outside the school. No one believed they were not being observed and recorded.

The majority of the Court made a distinction between expecting that a teacher will not make a recording for a sexual purpose and the expectation of privacy. The Court decided that the expectation not to be recorded arises from the teacher-student relationship, and not from a privacy expectation.

[105]   Clearly, students expect that a teacher will not secretly observe or record them for a sexual purpose at school. However, that expectation arises from the nature of the required relationship between students and teachers, not from an expectation of privacy. The expectation would also prevail, I would suggest, if a student met a teacher at a mall.

Ultimately, the majority of the Court of Appeal concluded that the teacher breached his relationship of trust with his students by making surreptitious recordings for a sexual purpose. However, they concluded that the offence of voyeurism required the Crown to prove that the students were in circumstances that gave rise to a reasonable expectation of privacy, and that the trial judge had erred in making that finding.

Justice Huscroft's dissenting reasons state that he saw the issue as a straightforward question: should high school students expect that their personal and sexual integrity will be protected while they are at school? He disagreed with the majority's conclusion that because students are seen at school, they have no reasonable expectation of privacy. Justice Huscroft came to a conclusion that favours student protection, stating as follows:

[133] ... In my view, the students' interest in privacy is entitled to priority over the interests of anyone who would seek to compromise their personal and sexual integrity while they are at school. They have a reasonable expectation of privacy at least to this extent, and that is sufficient to resolve this case.

Justice Huscroft summed up the paradoxical result of the majority's decision:

The result is the opposite of what one would expect: surreptitious visual recording of high school students for a sexual purpose, while they are at high school, is not illegal.


The decision in R. v. Jarvis raises important and evolving issues regarding police investigation of electronic recordings and the burden of proving such offences in the criminal context. The issue will continue to evolve as society is presented with new technology for recording and storing images.

In the employment context, there remains no doubt that the school board could take steps to address the conduct of the teacher in R. v. Jarvis, including dismissal for cause and reporting the matter to the Ontario College of Teachers.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions