On pervy teachers and privacy (or lack thereof)

A recent ONCA decision makes it legal for a high school teacher to secretly video students for sexual purposes — and shines a light on a gap in our Criminal Code

The law is a bizarre thing. It’s necessarily complicated in a lot of ways — because the things it tries to do are complicated and can have serious implications to the lives and freedoms of everyone — but in other ways, at other times, it gets lost WAYYY up its own logical crevices.

For instance, if I was to ask you if it was illegal for a high school teacher to secretly videotape female students, aged 14–18, for sexual purposes, you’d probably think you had a slam-dunk answer at the ready, right?

“Of course it is!” you’d say, because you’re a reasonable human being. “What kind of place do you think this is?”

The answer, as it turns out, is the Ontario Court of Appeal

Well… it’s the kind of place where that exact thing is not actually illegal, apparently. And while the various decisions that led to this sorry state of affairs were covered extensively by local media, and the appeal decision made a brief appearance on the CBC News “London” section, it still feels like this hasn’t garnered nearly the attention it deserves.

The Curious Case of Ryan Jarvis

The story dates back to 2011, when Ryan Jarvis, a high school teacher working in London, Ontario, was caught making secret videos of his students (and one fellow teacher) with a pen camera. The videos (there were 17 of them that the police recovered from the camera) range from a few seconds to a couple of minutes long, and they were shot in a whole bunch of settings in and around the school (hallways, classrooms, on the yard, in offices, etc). Five of these videos were “ directly or primarily focused on the cleavage of three particular female students”1. The others were all involving female students (the “fellow teacher” was also female), but were not exclusively focused on their cleavage.

All of that is, of course, creepy and inappropriate and gross. Obviously.

Unfortunately, “creepy, inappropriate and gross” does not constitute a criminal offence in Canada. Fortunately, the criminal code does contain a provision making voyeurism an offence (section 162, for those interested). The charge is made up of three main components:

The viewing or recording of the victim has to be done surreptitiously. The person being “observed or recorded” has to be “in circumstances that give rise to a reasonable expectation of privacy”. The viewing or recording must be done for a sexual purpose. This is actually one of three possible options to fill in this spot, but it’s the one that fits in this case.

At trial it was acknowledged by both sides that #1 was the case. Justice Goodman decided that #2 applied to this situation, ruling that the girls and women in these tapes did have “a reasonable expectation of privacy” at the school. However, because “the students here are fully clothed” and there might have possibly been other reasons for him making the recordings, “even with images that predominately display the students’ cleavage,” the trial judge decided that there wasn’t enough evidence that the recordings were made for a sexual purpose.

When that decision was passed down back in 2015, there was — understandably — concern in the community. It’s all too easy when reading judicial decisions to lose sight of the story and people behind the cold, clinical analysis offered up by a judge following a trial. Of all the people in the videos, only one unspeakably brave girl stuck to her guns and saw the trial through, which is why Jarvis was only facing one count of voyeurism.

The fact that the rest of the victims opted to avoid going to trial is completely understandable, and speaks to how little faith in the justice system women who are on the receiving end of sexual harassment and other offences have.

As Goodman himself acknowledged in his ruling, “of course, my assessment is subjective and may be the subject of lay or judicial criticism,” and thankfully it was. The case went on to the court of appeal two years later, and in the fall of this year, the higher court reached its verdict.

The found him not guilty, but for (somehow) even more head-scratching reasons.

[A quick note about how the court of appeal works: there are three judges that rule on court of appeal cases. If they rule unanimously in either direction, the only recourse the losing side has is to ask the Supreme Court of Canada if their case can be heard at the highest court in the land. If, however, one of the three judges opposes the ruling of the other two, the Supreme Court doesn’t have a choice. If the appeal is brought to them, they have to hear it. This’ll be important later.]

Not surprisingly, the main thrust of the Crown’s appeal was a much more eloquent, technical and precisely written version of “OF COURSE THE VIDEOS WERE FOR A SEXUAL PURPOSE!”

The defense’s point of view coming into the appeal were twofold:

The judge didn’t make an error of law at all, and the acquittal should be upheld. IF the judge made an error of law, it was because he didn’t find the defendant ‘not guilty’ *enough*, because the evidence should never have been admitted in the first place, and because the school wasn’t a place where the students had a reasonable expectation of privacy (the only remaining element of the voyeurism charge that wasn’t already settled).

When tackling the issue from on the Crown’s assertion, the court identifies that the other two possibilities for the third step in a voyeurism charge are that the viewing/recording happens in place where people are regularly (or can be expected to be) either partially or fully naked, or engaging in sexual activity; or in a situation where they actually are fully/partially naked or engaging in sexual activities.

Basically, the appeal judge writing for the majority (Justice Kathryn Feldman) says that because the first two options for voyeurism explicitly involve the victim (either their location, or their state of undress and/or whether they’re having sexual activity), the last one has nothing to do with the victim, and everything to do with the purpose of the recording. Further, since the first two involve nudity explicitly, nudity shouldn’t be a requirement for the “for a sexual purpose” requirement, nor should whether the people being viewed/recorded are doing anything particularly sexy at the time.

In the end, Feldman decides that the trial judge was wrong, that filming underage girls with a specific and undeniable focus on their breasts and cleavage was done for a sexual purpose.

Great, right? Well… no.

She then turns to the issues raised by the defense: a (relatively quickly dismissed) assertion that the evidence of the pen camera shouldn’t have been admitted at all because it was initially found through a warrantless and illegal search by police, and the issue of whether students in a school setting really are “in circumstances that give rise to a reasonable expectation of privacy.”

In a lengthy analysis involving much discussion about the proper way to interpret the wording of pieces of legislation and the nature of privacy when it comes to public schools where security cameras are in place in public areas, and students know they are (or can be) viewed at any given time in any number of circumstances, Feldman ultimately decides that in this black-and-white world of either all privacy or no privacy, these students do not have a reasonable expectation of privacy while at school.

[Incidentally, it must be nice to be a concurring judge at a court of appeal. By all accounts, the writing work of Justice Watt (the third judge hearing this case) is entirely encompassed in the words “I agree.” which follow Feldman’s lengthy written decision.]

Pulling on the mantle of “wait… what?” in this case is Justice Grant Huscroft, who (rightly, I think) boils down the core issue of this case as follows:

This case presents a straightforward question: should high school students expect that their personal and sexual integrity will be protected while they are at school?

In the next paragraph, he also makes an incredibly astute assessment of the underlying assumption present in the majority decision:

[The majority’s conclusion] assumes that if complete privacy is not possible, one cannot have a reasonable expectation of privacy even to a limited extent.

Finally, in a knock-out paragraph to wrap up his dissent, he brutally summarizes the actual effect of the majority ruling in this case:

I do not accept the majority’s suggestion that surreptitious recording for a sexual purpose is irrelevant in determining whether a person is in “circumstances that give rise to a reasonable expectation of privacy” — that the reasonable expectation of privacy must be determined independent of the conduct that threatens to compromise the students’ personal and sexual integrity. In my view, the result of this approach is ironic: the scope of the voyeurism offence is narrowed by the very thing Parliament intended to protect in establishing the offence — the reasonable expectation of privacy. 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.

Let’s read that again. The majority conclusion in this Court of Appeal decision means that, barring an overturn by the Supreme Court, in Ontario, a teacher is legally allowed to film his underage students’ chest and cleavage without their knowledge or consent for a sexual purpose. That’s allowed by law right now in this province.

[Side note: before anyone complains about ‘activist left-wing judges’ when it comes to Huscroft, bear in mind that he was appointed under Stephen Harper’s Justice Minister, and at the time of his appointment he was referred to in the national media as “[one] of the country’s most conservative law professors.” Common sense, it seems, doesn’t have quite the same political divisions a people may often assume.]

Now what?

So now that this weird situation has been either discovered or created by the court (depending on how you view things), what happens?

Well, because Huscroft voiced his concerns with this ruling, the Crown has the right to appeal to the Supreme Court, and they have to hear the case. That’s one less hurdle to overcome, and that’s a good thing. Hopefully the Crown takes the unbearably obvious step and does pursue the appeal on this case, and hopefully the justices of the Supreme Court takes an appropriately broad view of what “a reasonable expectation of privacy” actually means.

But there’s another angle to this, and that one points straight to Parliament.

Take another look at the actual charge of voyeurism, and what its components are, and ask yourself why there is a privacy element explicitly outlined here at all.

As Feldman pointed out in her majority decision in the Court of Appeal:

While it may have been open to Parliament to draft the offence of voyeurism more broadly, so that all surreptitious (non-consensual) observing and/or recording of a person who is within the circumstances listed in subsections (a), (b) and (c) is covered by this criminal offence, Parliament specifically included the additional requirement of “circumstances that give rise to a reasonable expectation of privacy”.

Why? Why would that general limitation need to be there at all? The law, as they say, is more like a hammer than a scalpel, but we pay our legislators a lot of money, presumably at least in part so that they make sure it’s as small and usefully precise a hammer as possible. In addition to this case showing the limits judicial common sense in rulings, it shines a glaring light on just one of many, many gaps in the actual structure and form of our laws.

It’s not that it would necessarily be overly difficult to come up with a better balance, either. The first of the three subsections inherently imply an expectation of privacy, because it requires that the viewing or recording be done in a place where people obviously expect privacy (places where they’re likely to be naked to some degree and/or where they would likely to engage in sexual activity). That one can stand on its own — no real need for the added “a reasonable expectation of privacy” condition here.

The second possible situation is: “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.” I suppose it is conceivable here that someone might be getting naked and/or jiggy with it in a public place in full view of everyone, so without the ‘reasonable expectation of privacy’, it would be a crime for anyone to watch them do that. That seems a bit much (of course, that’s not to say how outlandish this particular scenario would have to be), but it’s not impossible or unimaginable, so maybe we just add the ‘reasonable expectation of privacy’ to this particular clause. As long as he/she/they are in a place they could reasonably assume to be private, this clause applies. That doesn’t seem difficult.

In the third situation (where the viewing/recording is done for a sexual purpose), do we really think that everyone should have the default right to videotape people for a sexual purpose without their knowledge or consent in any situation? Is that the kind of world we want? Now, some may argue that this clause on its own would created a legal situation where someone could be charged for looking at someone for a sexual purpose (because, remember, voyeurism as a charge does not in itself require any more than observation by the accused). However, It seems that it would be incredibly difficult to actually bring this charge against someone who was simply looking at someone else while having impure thoughts. How could you *possibly* prove that, given that people have the right to not testify in their own defense in Canada? It seems to me that it would be as near as makes no difference impossible for this to be used in that way. And if it was, it would be in situations where the “observation” would have to have been so egregious, obvious and intrusive that maybe we do want to have that in there as a general protection of women that our society is so lacking. Catcalling and harassment (and, as far as I can tell at this point, the kind of non-contact sexual harassment that Louis CK is now renowned for) aren’t technically illegal in Canada, and maybe the idea that someone could be charged with voyeurism for being a lecherous creep on the subway or while walking on the street isn’t such a bad one.

The bottom-line lesson from the Ryan Jarvis trek through our legal system is that right now, a teacher has the legal right to secretly film underage girls’ breasts for his (or her) own sexual gratification. That’s where we are.

And whether the solution comes from the Supreme Court or from Parliament (or, ideally, both) — something has to be done about this.