When a pen is more than a pen

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In 2010, London, Ontario, school teacher Ryan Jarvis was caught taking photos of female students’ breasts using a pen camera. He was charged with voyeurism. In 2015, a trial court judge acquitted him; an acquittal that was upheld by the Ontario Court of Appeal, albeit for different reasons. Last week, the Supreme Court of Canada overturned the decisions of the two lower courts and found Jarvis guilty of the offence of voyeurism.

What is voyeurism?

In 2005, Canada’s Criminal Code added a new offence: voyeurism (section 162(1)), which is the secret watching or recording for a sexual purpose of someone who has a reasonable expectation of privacy.

There are two elements to this offence – the watching or recording must be for a sexual purpose and the person being watched or recorded must have a reasonable expectation of privacy – both of which have to be established beyond a reasonable doubt before an accused can be found guilty.

The trial judge in the Jarvis case said that the students – 27 young women between the ages of 14 and 18 – had a reasonable expectation of privacy, but he was not satisfied beyond a reasonable doubt that there was a sexual purpose to the recording of their breasts.

The Court of Appeal, with one dissent, upheld the acquittal, but for the opposite reason. It found that there was a sexual purpose to the secret recordings but that the students did not have a reasonable expectation of privacy.

It’s enough to make your head spin!

For any thinking person, the reasoning by both courts is hard to reconcile. When I was called by Global News for a comment on the decision, the first words out of my mouth were that it was horrifying to think that, in 2019, a case involving a teacher taking secret photos of his female students’ breasts would have to go to the Supreme Court for an appropriate analysis of the elements of voyeurism.

I think most of us can easily imagine the horror those teenage girls felt when they learned that their teacher had taken photos “at angles that capture[d] more of their breasts than would be visible if the students were recorded head on.”

What purpose other than sexual could an adult male teacher have for taking intimate photos of female students? And, how could students not have a reasonable expectation of privacy when at school? What century are we living in?

Fortunately for all of us, but perhaps especially for girls and young women who experience extremely high rates of sexualized violence, the Supreme Court made the decision that should have been made by the trial judge four years ago.  Mr. Jarvis’s recordings, the Court found, had a sexual purpose and the students had a reasonable expectation of privacy.

What makes justice?

This case attracted multiple intervenors, including the Canadian Internet Policy and Public Interest Clinic, the Privacy Commissioner of Canada, the Information and Privacy Commissioner of Ontario, the Canadian Civil Liberties Association, the Ontario College of Teachers, Women’s Legal Education and Action Fund and the Criminal Lawyers’ Association (Ontario), who brought different perspectives in front of the Court.

And its decision is an important one that will have implications far into the future in a wide variety of voyeurism cases.

For many of us, the notion of privacy in women’s bodies may well be the most important element of this case. As Pam Hrick and Moira Aikenhead wrote in the Globe and Mail:

“Privacy in our bodies is fundamentally connected to human dignity and autonomy, and cannot be easily eroded. We do not surrender our privacy interests and our right not to be surveiled merely by walking out our front door each morning. The fact that technologies now exist allowing others to invade our privacy in previously unimaginable ways does not mean that our privacy expectations upon entering public spaces have been obliterated.”

Historically and still today, women are often blamed for the violence—especially the sexual violence – that happens to us: we asked for it because of the way we were dressed or because of where we were are just two of the victim-blaming tropes that continue to lurk in the minds of Canadians, including Canadian judges.

Perhaps one day soon women will be able to step outside our homes wearing clothing that does not cover us from our chin to our toes and not be told the sexual violence that is done to us – like Mr. Jarvis’s photos – is our fault.

However, in the meantime, it has been nine years since Jarvis was caught taking pictures of girls’ breasts. He may have been found guilty, but he has yet to be disciplined by the Ontario College of Teachers.

Is that justice?

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