Ontario Teacher’s Surreptitious Video Recording of Female Students’ Cleavage was not “For a Sexual Purpose”
By: Prof. Teresa Scassa
Justice Goodman of the Ontario Superior Court has ruled that a high school teacher who used a pen camera to surreptitiously record interactions with female students – with an emphasis on their cleavage – was not guilty of voyeurism because he was not persuaded, beyond a reasonable doubt, that “the observation or recording is done for a sexual purpose” (Criminal Code, s. 162(1)(c)).
The videotaping in question took place at a high school in London, Ontario in 2011. The teacher used a pen camera to make seventeen video ranging from 6 seconds in length to over 2.5 minutes. The students captured in the videos were all female, and all between the ages of 14 and 18 years of age. The teacher, Ryan Jarvis, was caught when one of his colleagues became suspicious of his actions and reported Jarvis to the school principal. The principal sought out Jarvis. He crossed paths with him twice. The first time was while he was leaning against a locker, in conversation with a female student, with his arms crossed and holding up a pen from which a red recording light was shining. The second time was while he was in a computer lab, standing near a seated female student. The principal “noted that Jarvis had his arms crossed and was holding the pen so that the top, non-writing part of the pen was visible.”(at para 12) The principal took possession of the pen on June 21. Seventeen active videos were found on the pen. Police obtained a warrant to search Jarvis home over a week later on June 29. Although they seized various electronic devices, they found no more images or videos. Jarvis’ computer system was missing its hard drive.
The defence advanced two main arguments. The first of these was that the students at the school had no reasonable expectation of privacy, as they were in a public place and were already subject to daily surveillance via security cameras installed throughout the school. Justice Goodman made relatively short work of this argument. He noted that while there might be some instances at school where students have no reasonable expectation of privacy, this was not one of those instances. He wrote: “the recordings are of diverse and somewhat prolonged duration in circumstances where the students’ spatial integrity in or about the school was impacted in a most surreptitious manner. All this gives rise to an expectation of privacy by the students.” (at para 49)
The second argument of the defence was that it could not be established beyond a reasonable doubt that the video recordings were made for a sexual purpose. It was this argument that ultimately proved successful.
The images captured by the pen camera included a number of clips that focussed exclusively on the students’ breasts or cleavage. Other clips moved from the students’ faces to their breast area. Justice Goodman wrote: “it is arguable that a reasonable viewer, looking at the clips objectively and in context, would perceive that these depictions of the students’ cleavage were intended to cause sexual stimulation to some viewers.” (at para 59) Nevertheless, he still found that the Crown had not established its case. He stated: “While a conclusion that the accused was photographing the student’s [sic] cleavage for a sexual purpose is most likely, there may be other inferences to be drawn that detract from the only rationale [sic] conclusion required to ground a conviction for voyeurism.” (at para 77) Because of this, he found that guilt beyond a reasonable doubt could not be established. No examples were given of “other inferences that might be drawn”.
In reaching his conclusion Justice Goodman acknowledged that his decision might be “the subject of lay or judicial criticism” (at para 60). Good call. Implicit in the concept of “beyond a reasonable doubt” is that any doubt has to be reasonable. It is frankly difficult to conceive of any explanation for a male high school teacher’s surreptitious recording of his interactions with female students, in violation of their privacy rights, and with a focus on their breasts and cleavage, that does not involve sexual purposes. Any doubt that ‘sexual purposes’ motivated this behaviour would seem frankly unreasonable.
It is difficult to explain how Justice Goodman could find that the “accused’s behaviour was morally repugnant and professionally objectionable,” (at para 78) and yet still not be persuaded it was criminal. The outcome suggests that it has become so commonplace in our society for young women to be objectified and sexualized that it takes some really overt sexual dimension for the legal system to take notice. There are offences in the Criminal Code that deal with more overt forms of sexual exploitation and offences that address sexual violence. The voyeurism provisions are designed to capture, among other things, creeps with cameras. That they did not succeed in doing so in this case is troubling.