Most, if not all, of us can likely agree that it is wrong to film someone without their consent. We can also probably agree that it is even more wrong when the filming is sexual in nature. Take for example someone filming you inside your condo while changing and/or focusing their camera in on your private parts. Those same people are probably also in agreement that when it is a teacher filming one of his/her students at school, it is even more wrong.
So hypothetically speaking, if a teacher were to film his students and more specifically, his female students' chests, without their knowledge, this would be very wrong and that teacher should be sanctioned. Seems pretty cut and dry, right? Wrong.
In late 2010, Ryan Jarvis, a then high school teacher in London, Ontario, was caught secretly filming the chests of his female students with a camera pen. Jarvis filmed over 25 of his female students, all of whom were between the ages of 14 and 18 and all of whom had no idea they were being filmed.
Jarvis was charged with voyeurism under section 167(1) of Canada's Criminal Code. Section 167(1) reads:
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
(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;
(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or
(c) the observation or recording is done for a sexual purpose.
At trial, Jarvis was acquitted of his charges. According to the trial judge, there was no evidence that Jarvis filmed the students for sexual purposes. On appeal at the Court of Appeal for Ontario, the panel found there to be clear sexual intent but the court upheld the acquittal on the basis of the students having "no reasonable expectation of privacy while at school".
So although it seems absurd that something so inherently wrong went all the way to Canada's top Court to decide, it did.
The Supreme Court of Canada was tasked with determining whether the students recorded by Jarvis were in circumstances that gave rise to a "reasonable expectation of privacy." Jarvis argued that because the students were at school, where there were several other various surveillance cameras, such a reasonable expectation did not exist.
The Supreme Court released their decision yesterday and the court disagreed with Jarvis' argument and instead advanced a position held by most of the Canadian public: girls (and boys) should be able to go to school without having to worry about whether they are being secretly recorded, especially by someone in a position of trust, such as a teacher.
However, although all nine Supreme Court judges agreed that Jarvis was guilty of voyeurism, the Justices were split on the legalities of the case, thereby demonstrating its complexity and the fact that this was not in fact an "open-and-shut case," despite many Canadians having felt so.
Ultimately, the Supreme Court's decision has set clearer (and more expansive) guidelines around what a reasonable expectation of privacy means when in public spaces in the context of voyeurism. The court considered the example of a drone taking high-resolution photographs of unsuspecting sunbathers at a public swimming pool and noted that this too would raise similar privacy concerns to Jarvis' case.
Not surprisingly, Jarvis' lawyers feel that the Supreme Court has cast the net of what constitutes a "reasonable expectation of privacy" too wide, but legal scholars, Ontario's Information and Privacy Commissioner and women's rights group alike all consider the decision the "right" one in the face of something that was so obviously wrong.
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