Phone: 604-558-8778
Toll Free: 1-855-558-8778

Author:Lauren Chancellor

Voyeurisum

Voyeurism in the Classroom: Is there a Reasonable Expectation of Privacy?

Voyeurism was added to the Criminal Code in 2005 as a new criminal offence, under s.162(1). The offence is committed when an individual secretly observes or records another person under circumstances where that person had a reasonable expectation of privacy. The individual being recorded must also be in a location where they can reasonably be expected to be nude, they are nude, or the recording is for a sexual purpose.

The Jarvis Case

Ryan Jarvis was a high school English teacher charged with voyeurism in 2011. He used a camera concealed within a pen to record the upper bodies, breasts, and faces of female students in classrooms and hallways of their Ontario school. These students were not aware that their teacher recorded them, and they did not consent to being recorded in this way.

Mr. Jarvis admitted to surreptitiously recording female students but argued that they had no reasonable expectation of privacy within the school. He also submitted that the recordings were not for a sexual purpose. The trial judge found that the students did have a reasonable expectation of privacy, but Mr. Jarvis was acquitted because the trial judge was not satisfied beyond a reasonable doubt that the recordings were made for a sexual purpose. The judge thought the recordings were likely made for a sexual purpose, but he could not rule out that there were other possible purposes that could be inferred.

The Court of Appeal upheld Mr. Jarvis’ acquittal, but reversed their reasons from that of the trial judge. They found Mr. Jarvis had recorded the students for a sexual purpose and no other purpose was suggested by Mr. Jarvis’ defence at trial. However, they found that the students were not in circumstances that gave rise to a reasonable expectation of privacy as they were in a public place with security cameras recording them. One judge at the Court of Appeal dissented. Huscroft JA would have entered a conviction on the basis that all elements of the offence were proven.

The Court of Appeal dissent allowed Crown to appeal the decision once more, to the Supreme Court of Canada in R v Jarvis 2019 SCC 10. The central issue at the Supreme Court of Canada was whether the circumstances gave rise to the students’ reasonable expectation of privacy to not be observed or recorded in a manner that falls under the criminal voyeurism charge.

What are the Circumstances that Give Rise to a Reasonable Expectation of Privacy?

Mr. Jarvis’ counsel submitted that the circumstances that give rise to a reasonable expectation of privacy should be the circumstances in which a person has a reasonable expectation that they will not be observed by others. They made no distinction between observations and recordings and did not include other factors in their privacy analysis.

Crown, by contrast, submitted that there should be a broader understanding of the reasonable expectation of privacy. This would require a contextual, fact-based analysis that considered more than just the private nature of the location where the observation or recording took place.

Chief Justice Wagner found the Crown submissions more compelling. He defined the circumstances that give rise to a reasonable expectation of privacy in a criminal voyeurism case as “circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred.” Therefore, an individual’s reasonable expectation of privacy in a voyeurism case is very fact-dependent.

This definition does not create an all-or-nothing conceptualization of privacy, nor does it remove all reasonable expectations of privacy when an individual is in a public or semi-public space. Instead, a variety of factors may be considered to determine whether someone would have a reasonable expectation of privacy with respect to the type of recording or observation that they were subject to. These factors include the location, subject matter, and manner of observation or recording, as well as the relationship between the parties and whether there are formal rules or policies that contribute to the level of expected privacy.

Wagner CJ provided multiple examples that showed why an individual would not immediately lose all expectations of privacy once they leave the confines of their shuttered home. For example, people have an expectation that others in a communal changing room may observe them in various stages of undress, but not that someone would have a hidden camera recording them in that change room. Additionally, someone on a public bus would expect to be observed or recorded in the background of someone’s image, yet they would retain their expectation of privacy from upskirt photos, or other revealing and sexual images.

Classroom Expectations of Privacy

Wagner CJ found that the students were recorded in circumstances that gave rise to a reasonable expectation of privacy. Although the school did have security cameras that recorded them daily, these cameras were very different than the hidden camera technology used in Mr. Jarvis’ pen. This pen was pinpointed to record female students and their cleavage without their knowledge. While students may understand that they could be recorded from a distance for security purposes, there is no reason for them to expect the images to be intrusive or for teachers to have access to such recordings.

Mr. Jarvis also held a position of trust as a teacher in a high school. His responsibility toward his students provided an additional expectation that he would not breach their privacy and subject them to such recordings. Additionally, a formal school board policy prohibited teachers from making any recordings of students. Wagner CJ found that this policy was relevant in showing what the formal rules and informal norms are in a school environment.

Three justices dissented from the Wagner CJ’s majority in how the circumstances giving rise to a reasonable expectation of privacy should be defined. Rowe J would have limited the multi-factored analysis to those that define the offence. Factors such as the relationship between the parties should only be relevant for sentencing.

Rowe J went on to say that “sexual offences are designed to protect the personal autonomy and sexual integrity of the individual.” As such, Rowe J would have created a two-step test to determine whether the circumstances gave rise to a reasonable expectation of privacy:

  1. Did the surreptitious observation or recording diminish the subject’s ability to maintain control over their image?
  2. And if so, did this type of observation or recording infringe the sexual integrity of the subject?

If these two questions were answered in the affirmative, then the subject had a reasonable expectation of privacy from such observation or recording.

The Supreme Court of Canada unanimously concluded that the female students had a reasonable expectation of privacy from Mr. Jarvis’ surreptitious recordings. There was no question whether the recordings were made for a sexual purpose at this Court. Mr. Jarvis was convicted of voyeurism and the Court remitted his sentencing back to the trial courts.

Do you have a voyeurism charge? We have experience and can help. Contact us today.

0
Facebook Internet Child Luring

Internet Child Luring Charges -R vs Mills

Internet child luring under section 172.1 of the Criminal Code is the act of an adult communicating with someone online that they believe is under the age of eighteen. These communications result in the adult attempting to meet with the supposed child offline, for a sexual purpose.

This child charge comes with severe penalties. A conviction for internet child luring includes a requirement for the convicted person to register as a sexual offender for the rest of their life. Additionally, child luring charges have a mandatory minimum sentence of six months in jail. The maximum sentence that can be imposed is 14 years’ incarceration.

Police have many tactics to find those who attempt to lure children. One such technique is to pose as a child on social media platforms and communicate with the adults who contact them. When the adult attempts to meet with the supposed child offline, the police arrest the adult ‘in the act.’

Recently, questions were raised in R v Mills 2019 SCC 22 about whether the online communications between an adult and the supposed child could be presented in court without prior judicial authorization.

Mills’ Child Luring Case Experience

Mills was arrested for internet child luring in 2012 after communicating with what he thought was a 14-year-old girl named Leann. They messaged on Facebook for two months until he arranged to meet with her in person. Their conversations included sexually suggestive messages and explicit photos that indicated Mills had a sexual intention.

But that 14-year-old girl was actually a police officer. The officer screen-captured all of the messages between Mills and the officer’s fictional alias, Leann, for the investigation. Those messages would prove pivotal to the prosecution. If those messages were admissible in Court, then they likely proved that Mills had a sexual purpose in wanting to meet.

Section 8 of the Canadian Charter of Rights and Freedoms provides a right against unreasonable search and seizure. Mills argued there was a reasonable expectation of privacy to his private communications and that expectation of privacy was breached without a judicially-authorized warrant, which was not obtained in this police sting.

At trial, the Facebook messages were deemed “private communications” that were intercepted by the police without a warrant. The use of a screen-capture software to capture a record of the communications was an additional seizure of the communications that also required authorization. The trial Court found that the use of a username and password on Facebook indicated that Mills had an expectation of privacy in his communications, albeit limited by the officer’s alias. However, the Court exercised its discretion to admit the evidence despite the breach of Mills’ section 8 Charter rights and Mills was convicted.

The Court of Appeal upheld Mills’ conviction but found there had been no interception of the messages. The Court of Appeal found that the police were a party to the conversation and no judicial authorization was required if there was no interception. They also said Mills gave up any expectation of confidentiality when he voluntarily sent the messages to a stranger. Therefore, section 8 of the Charter was not infringed.

No Reasonable Expectation of Privacy in Online Communications

The Supreme Court unanimously upheld Mills’ conviction for child luring but there were substantial differences on their approaches to the privacy issue. Although the Justices differed in how they approached the issue of privacy and online communications, they all agreed that the conversations should be admitted in this case.

The majority decision of Justices Brown, Abella, and Gascon found that although Mills may have expected privacy in his conversations with Leann, it is unreasonable for adults to expect privacy in their online communications with children that they do not know. Online communication adds unpredictability, not privacy.

The Court noted there is a difference between conversations of adults and children who are familiar with each other, such as family, friends, professionals, and religious advisors, and those who are strangers such as in the case of Mills and Leann. This decision allows police agencies to continue their undercover sting operations to attract child lurers with fake profiles of children. The police are aware from the outset that the fictional child is a stranger to the adult and no reasonable expectation of privacy protects their conversations. No judicial authorization is required as there is no potential for a privacy breach.

Justices Karakatsanis and Wagner held there was no privacy breach for different reasons. They found there can be no reasonable expectation of privacy from the intended recipient of a message, even if that intended recipient is not who the sender expected they were. The sender cannot know if the stranger they communicate with is who they portray themselves as, due to the anonymity of the Internet. Additionally, the screen capture of the conversations was seen as a mere copy of the pre-existing written record and not subject to a prior judicial authorization.

Justice Moldaver agreed with both the majority decision of Brown, and Karakatsanis’ concurring reasons that there was no reasonable expectation of privacy. However, Justice Martin found the screen-capture of previously sent messages was a breach of Mills’ section 8 privacy rights. However, she would still have admitted the evidence despite the breach, as the breach did not bring the administration of justice into disrepute.

0

Pre-Trial Custody is the Exception

Section 11(e) of the Canadian Charter of Rights and Freedoms confers the right not to be denied reasonable bail without just cause. As such, the detention of accused individuals is intended to be the exception, while pre-trial release is the rule. Additionally, the presumption of innocence enshrined in section 11(d) of the Charter provides that one’s liberty should not be taken away prior to conviction, unless justified under section 515(10) of the Criminal Code. Therefore, release with the least onerous conditions is generally favoured over pre-trial detention.

Section 525 of the Criminal Code requires a judicial review of an accused’s detention if the trial has not begun within 90 days. The purpose of this section is to avoid accused persons languishing in pre-trial custody for extended periods of time while awaiting their trial.

There are sound reasons for this. It is more difficult for accused individuals held in pre-trial custody to access legal advice and effectively instruct their counsel. Section 525 provides the opportunity to have a judge reconsider whether the continued detention of an accused person is justified when a trial is not held within 90 days. It is a safeguard that protects an accused’s liberty and is consistent with the presumption of innocence enshrined in section 11(e) of the Charter.

However, until recently, there were two competing lines of authority in British Columbia about how to interpret section 525 detention review hearings. One line of authority ruled that section 525 required a two-step process. The first step required the accused to establish unreasonable Crown delay in bringing the case to trial. If established, the accused then had the burden to show a material change in circumstances under the normal section 515(10) bail provision of the Criminal Code. The other line of authority favoured a one-step process that did not place an onus on the accused to prove unreasonable delay prior to their bail review under section 525. Guidance was needed to determine which of these two competing lines of authority were correct.

Corey Myers’ Experience

On March 28, 2019 the Supreme Court of Canada handed down a unanimous decision of nine Justices in R v. Myers 2019 SCC 18 that effects accused persons in pre-trial custody. The Court unanimously ruled that an accused does not need to establish unreasonable delay in bringing him to trial in order to justify his release under section 525 of the Code. In other words, the Court ruled that section 525 is a one-step, and not a two-step, process.

Corey Myers was arrested and charged with multiple firearm offences in January of 2016. He first sought bail after completing a prior sentence in November 2016, but his application was dismissed as the suggested terms of his bail did not sufficiently address the risk that Myers might commit further offences.

In March 2017, the Crown began a review hearing under section 525 as the 90-day detention period had expired. The British Columbia Supreme Court determined that the test for a section 525 hearing was a two-step process. This provided no recourse for Myers to challenge his detention order as there had been no unreasonable delay in bringing him to trial.

In January 2018, Myers pled guilty to reduced charges and was sentenced to 30 months in prison. However, Myers appealed the British Columbia Supreme Court’s decision that a section 525 bail review hearing required him to show there was unreasonable delay in getting him to trial before he could successfully get bail under that section. Although the appeal was moot since Myers was no longer in pre-trial custody, the Supreme Court of Canada exercised its discretion to hear the appeal anyway.

The New Approach

In Myers, the Court unanimously set forth a new procedure for detention review hearings. The Court ruled that section 525 is an automatic provision laying mandatory obligations on the jailer and judge. Now, the jailer must apply for the hearing immediately after the 90-day period has expired and a judge must set a date and give notice of the hearing to the accused. The accused is not required to prove unreasonable delay in getting to trial to get such a review.

The Court found that Parliament created section 525 to allow a judicial assessment of whether the continued detention of the accused is justified under section 515(10) of the Criminal Code. That section sets out three possible grounds to justify the detention of an accused: where it is necessary to ensure the accused attends court; where it is necessary to protect the safety of the public; and where it is necessary to maintain public confidence in the administration of justice. The Court found that the right to a section 525 review is automatically triggered after 90 days. The Court further ruled that there is no additional requirement to also prove unreasonable delay in getting to trial beyond 90 days in order to succeed and be released from custody.

The judge in a detention review hearing may consider new evidence, changes in the accused’s circumstances, unreasonable delay, and the rationale for the original detention order, in addition to the evidence and submissions in prior bail hearings. Finally, the judge has the discretion under sections 525(9) and 526 to expedite the trial of a detained accused, giving consideration to the risk of unconstitutional delay.

The Myers decision represents a significant change in the law and process surrounding pre-trial detention which will no doubt impact the number of accused persons who seek their release from custody after an initial detention order.

0