Canada’s top court has ruled students have a reasonable right not to have their faces and breasts filmed without their consent at school.
The unanimous Supreme Court of Canada ruling comes nearly eight years after London, Ont., teacher Ryan Jarvis was caught surreptitiously filming students with a pen camera, and charged with voyeurism.
According to the court’s written decision, Jarvis’s recordings were very much not a case of a teacher taking snapshots of “daily life at a high school.” The videos included intimate close-ups of 27 female students “wearing low-cut or close-fitting tops” and taken “at angles that capture more of their breasts than would be visible if the students were recorded head on.”
Jarvis was initially acquitted at trial in 2015, with the trial judge ruling that although there was a reasonable expectation of privacy, it wasn’t clear whether the videos were made for sexual reasons.
The Ontario Court of Appeal upheld that acquittal but for the opposite reasons: it said the videos were made for sexual reasons but that schools do not carry a reasonable expectation for privacy.
The Supreme Court overturned both, finding the recordings were sexual in nature and Jarvis’s actions violated the students’ privacy.
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Jarvis now stands convicted of voyeurism and will be sent for sentencing. His lawyer did not respond to an email or voicemail requesting comment.
“I’m a bit horrified that in 2019, it had to go all the way to the Supreme Court before getting to what I think is the appropriate outcome,” says Pamela Cross, legal director at Luke’s Place, which provides legal support for victims of domestic violence. The ruling brings the legal saga to a close. (Although Jarvis still has to face the Ontario College of Teachers discipline committee).
But by laying out a detailed list of circumstances to consider when weighing what does or doesn’t constitute a reasonable expectation of privacy, Gillian Hnatiw says the Supreme Court has created a “very flexible, common-sense test” that will – especially in the digital age – “afford protections to women in all sorts of settings and circumstances.”
Hnatiw, a partner at Adair Goldblatt Bieber LLP in Toronto, who served as counsel on the Jarvis case for the Women’s Legal Education and Action Fund (LEAF), called it the type of case women go to law school so they can argue.
“I’m thrilled that the court recognized that this is about more than just privacy, but about sexual integrity and personal autonomy,” she says.
“This is about women’s bodies and a woman’s right to go out in public and retain some autonomy over her body.”
The court’s decision makes it clear that being in a public space does not automatically override a person’s right to privacy.
Brian Beamish, the Information and Privacy Commissioner of Ontario, intervened in the case specifically out of concern that if the Ontario Court of Appeal decision was left to stand it, it would imply that by going into “semi-public spaces with surveillance cameras,” a person was giving up their right to privacy.
The Supreme Court decision “draws some pretty clear lines around what kind of behaviour will be considered criminal,” Beamish says. “I think the court got the right result.”
Although the Jarvis case involved classrooms and hallways in a school, the decision also notes how using public change rooms at swimming pools does not mean someone has carte blanche to record you, nor does taking public transit.
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Factors the Supreme Court says should be considered in determining reasonable right to privacy include: location, consent, the manner of which someone was observed or recorded, the content or subject matter, the relationship between the parties – Jarvis was a teacher while the 27 girls were students – as well as the purpose of the recording.
“We’ve been slow as a society to recognize the incredible harm that comes from being the subject of these types of violations,” Hnatiw says.
Although the decision was unanimous, two of the Supreme Court justices wrote their own reasons, which included dissenting with the majority of their bench and saying “a relationship of trust between the parties should not be a factor in finding a person guilty of voyeurism.”
It is a factor, says Farrah Khan, manager of Consent Comes First at Ryerson University.
“As someone who holds a position of power in the community, who is working with vulnerable populations, you do not exploit those vulnerable populations,” she says. “You protect them.”
Khan says she hopes the ruling helps people speak about “the vulnerability young girls face in schools.”
Teenage girls between the ages of 13 and 15 experience the highest rates of sexual assault, according to the Canadian Women’s Foundation.
“Young women live in a world where they are objectified and sexualized,” said the Foundation’s director of community initiatives and policy Anuradha Dugal in a statement.
Caroline Zayid, legal counsel for the Ontario College of Teachers, says the Supreme Court’s decision reaffirms the parameters around the unique, trust-based relationship between students and teachers.
“It made it very clear that even when students are in a quasi-public space like a hallway, they still have a reasonable expectation that their teachers – who are there to provide them an education – will not record them for sexual purposes,” Zayid says.
“For most people, that would sound like common sense.”