Canada: Supreme Court Of Canada Finds Teacher Guilty Of Voyeurism For Camera Pen Recordings

In the Fall 2018 Education Law Newsletter, we reported on the Ontario Court of Appeal decision in R. v. Jarvis. In that decision, a high school English teacher was acquitted of voyeurism for using a camera pen to surreptitiously film female students' chests. On February 14, 2019, the Supreme Court of Canada unanimously reversed the Ontario Court of Appeal decision and found the teacher guilty of voyeurism. The Supreme Court found that privacy is "not an all-or-nothing concept" and that students in schools are entitled to a reasonable expectation of privacy, free from covert, close-range recordings.

Background

The accused in R. v. Jarvis was an English teacher at a high school in Ontario. He used a camera concealed inside a pen to make 19 surreptitious video recordings of 27 female students and three male students while they were engaged in ordinary school-related activities in common areas of the school. Most of the videos focused on the faces and chests of female students. The students were not aware that they were being recorded by the teacher, nor did they consent to the recordings. A school board policy in effect at the relevant time prohibited this type of conduct.

When the principal discovered the camera and turned it over to police, the teacher was charged with voyeurism. Although he admitted that he had surreptitiously recorded the students, the other two elements of the criminal offence remained in issue at trial: whether the recording was made in circumstances giving rise to a reasonable expectation of privacy, and whether the observation or recording was done for a sexual purpose.

Lower Court Decisions

At trial, Justice Goodman determined that the recordings were made in circumstances that gave rise to a reasonable expectation of privacy. He found, however, that there could be other inferences to be drawn aside from making the recordings for a sexual purpose. The trial judge therefore acquitted the teacher of all charges.

The Ontario Court of Appeal upheld the acquittal, but reversed the lower court's analysis. The majority held that the recordings were made for a sexual purpose but that students do not have a reasonable expectation of privacy at school.

Supreme Court of Canada Decision

The Supreme Court of Canada found that the recording was done for a sexual purpose in circumstances giving rise to a reasonable expectation of privacy. The majority of the Court adopted a non-exhaustive list of relevant considerations in deciding whether students, or any alleged victim of voyeurism, had a reasonable expectation of privacy at the time of the observation or recording. The factors include:

  • the location the person was in when she was observed or recorded;
  • the nature of the impugned conduct (whether it consisted of observation or recording);
  • awareness of or consent to potential observation or recording;
  • the manner in which the observation or recording was done;
  • 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 done; and
  • the personal attributes of the person who was observed or recorded.

Writing for the majority, Chief Justice Wagner stressed that privacy is "not an all-or-nothing-concept" and that "being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording."

Chief Justice Wagner also commented at length on the nature and level of privacy that students can expect at school. He found that "in ordinary circumstances, students in the common areas of a school cannot expect not to be observed by others and may also expect to be subject to certain types of recording". However, he also found that being in a non-private location does not entirely negate a reasonable expectation of privacy: the level of privacy that students can expect at school is lower than can be expected in a fully private space, like a bedroom or a bathroom. Schools, however, are not fully public spaces, and the level of privacy to be expected at school is still higher than would be expected in a fully public space like a sidewalk. The court commented:

"For one thing, access to schools is usually restricted to certain persons, such as students, teachers, staff and guests... More significantly, schools are also subject to formal rules and informal norms of behaviour, including with respect to visual recording, that may not exist in other quasi-public locations."

The teacher had argued that the students could not have had a reasonable expectation not to be recorded, because they knew there were security cameras inside and outside the school. The Supreme Court, however, was unconvinced by this argument, finding that "not all forms of recording are equally intrusive". While students could reasonably expect to be captured incidentally by security cameras in the school, "it does not follow that they would also reasonably expect to be recorded at close range with a hidden camera, let alone by a teacher for the teacher's purely private purposes". The Chief Justice also said that the students in the recordings were young persons with a reasonable expectation that the adults around them would behave prudently. He stated: 

"The fact that all of the students were young persons means that they would have reasonably expected the adults around them to be particularly cautious about not intruding on their privacy, including by not targeting them for visual recording without their permission. Therefore, the fact that all of the students recorded were young persons strengthens the argument that they could reasonably expect not to be recorded in the manner they were."

Chief Justice Wagner also found it relevant that the school in question had policies prohibiting the type of recording taken by the teacher. Although the Chief Justice commented that the absence of such a policy or the presence of a less reasonable policy would not have justified the teacher's behaviour, the presence of such a policy highlighted the wrongful nature of his conduct.

Comment

Like many other organizations, schools and school boards often grapple with the interaction between today's social media and technology age, where educators stand in loco parentis and must exercise care to protect students.

The Supreme Court of Canada's decision in R. v. Jarvis confirms that students have a reasonable expectation of privacy at school, even in communal spaces. Although a school is not as private as other places, it is more private than fully public spaces. Privacy rights exist on a spectrum and must be balanced in view of all applicable circumstances. However, Chief Justice Wagner's comments suggest that surreptitious, close-range video recordings of students will never be appropriate, regardless of the body part recorded or the individual doing the recording.

R. v. Jarvis also confirms that surreptitious recordings of students by teachers that are sexual in nature may incur not only employment-related and licensing penalties from the Ontario College of Teachers, but also criminal consequences for the teachers involved.

Schools and school boards should consider adopting and regularly reviewing privacy policies and codes of conduct to prohibit this type of behaviour and set out rules regarding the appropriate use of technology at school.

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 Mondaq.com.

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

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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