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:
- Did the surreptitious observation or recording diminish the subject’s ability to maintain control over their image?
- 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.
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Sep 18, 2017
The law of sexual assault in Canada is complex and constantly changing. There are several stages of the prosecution of a sexual offence that require important decisions on the part of the accused that you should not make without the guidance of experienced counsel.
When you are initially charged with a sexual offence, there will be bail considerations and an opportunity for negotiations with the Crown. Ultimately, if you are not guilty, you may end up having to go to trial.
An experienced lawyer will help you decide in which level of court your particular sexual offence case should be heard, in order to provide the best chances for an acquittal. Depending on the age and relationship to you of the complainant, a preliminary inquiry may or may not be fruitful. There are a wide range of highly technical procedures available to the Crown that a good lawyer knows how to anticipate and oppose.
At the preliminary inquiry stage, you want a lawyer with experience applying for witnesses to be compelled to submit to cross examination, and opposing other evidentiary motions.
At the trial stage, you want a lawyer with experience making third-party records applications, making prior sexual history applications, challenging the admissibility of confessions, cross examination, and most importantly, a lawyer who is very familiar with the unique nuances between the elements of different sexual offences. Depending on which sexual offence you are charged with, there may be subtle defences available to you based on your actions and/or intentions.
If you are guilty and want to take responsibility for your charges, you will need a lawyer who is current on the recent and continuing developments in the sentencing law of sexual offences. The aggravating factors that may increase your sentence for a sexual offence can be misunderstood and misused by Crown. You need a lawyer who can protect you from any such injustice and highlight any mitigating factors in your case to the court. There are also special sentencing considerations for sexual offences that you don’t face for any other type of crime, especially if the complainant is a youth. There are mandatory minimum jail sentences in some cases, and you could face very strict conditions for up to life. You need a lawyer who has experience with these procedures to help you navigate the system if you want to plead guilty in order to secure the best possible sentence.
Regardless of whether you are guilty or innocent, if you are charged with a sexual offence including but not limited to sexual assault, sexual interference, sexual exploitation, invitation to sexual touching, possession or distribution of child pornography, luring children, indecent exposure, voyeurism, human trafficking, or incest, you need an experienced lawyer with an expertise in this area of law to ensure you have the best opportunity for a good result.
If you have been charged with or are being investigated for a sexual offence, please don’t hesitate to contact us for a consultation.