LEAF celebrates today’s release of the Supreme Court of Canada’s ruling in R. v. Jarvis, the first occasion our country’s highest court has had to interpret the sexual offense of voyeurism in section 162(1) of the Criminal Code.
The Supreme Court’s ruling is an important contribution to the advancement of women’s and girls’ equality in the digital age. By rejecting a narrow, location-based definition of privacy, the Court refused to allow historically gendered ideas about the public and private sphere to taint or narrow the real life protections that Parliament intended to extend to Canadian women. Instead, the Court adopted a nuanced, contextual test centered on circumstances where women expect to be “free from the type of intrusion” at issue, in line with a modern society in which women strive to enjoy true equality.
Today’s ruling will allow Canadian women and girls to engage in public life with greater confidence that the law will protect them from demeaning, non-consensual intrusions into their sexual integrity and autonomy. The Supreme Court has sent a clear message that crimes of image-based sexual violence will not be tolerated in Canada. The decision will have positive impact on the day to day lives of Canadian women and girls, and the confidence with which they engage in social, cultural, economic, and political life.
Details of the Case
In R. v. Jarvis, the Supreme Court considered whether a male high school teacher who secretly filmed his female students’ breasts with a camera pen had violated their “reasonable expectations of privacy” and was therefore guilty of voyeurism.
Voyeurism is a fundamentally gendered crime that disproportionately affects women and girls. LEAF intervened to argue that “privacy” in this context must therefore be understood as a concept that protects the sexual integrity and autonomy of women and girls participating in public life.
At trial, Jarvis was acquitted on the basis that the recordings were not made “for a sexual purpose”. The Court of Appeal for Ontario reversed this finding but upheld the acquittal on the basis that the students had no reasonable expectation of privacy in “public” space – namely, their high school. In support of this finding, the Court pointed to the fact that the students were filmed in common areas where they expected others to see them, and because they were being recorded by the school’s security cameras.
In reversing this decision, the Supreme Court noted that, by filming his young female students, Jarvis’ actions constituted a gross breach of the trust relationship between teachers and students. He also contravened a formal school board policy prohibiting such recordings, and used hidden technology to make close-range recordings that predominantly focused on their breasts. In the circumstances, the students had a reasonable expectation that they would not be subject to the type of recording that occurred.
The Court added that individuals “going about their day-to-day activities – whether attending school, going to work, taking public transit or engaging in leisure pursuits…reasonably expect not to be the subject of targeted recording focused on their intimate body parts (whether clothed or unclothed) without their consent”.
These comments helpfully clarify that women and girls do not abandon their privacy interests – and specifically, their right to be free from unauthorized intrusions into their sexual integrity – when they enter public spaces where they know they can be observed by others. The Supreme Court instead endorsed a nuanced definition of privacy that reflects the “typical or ordinary understanding” that “a person may be in circumstances where she can expect to be the subject of certain types of observation or recording but not to be the subject of other types.”
LEAF is pleased that the Supreme Court has recognized that voyeurism is a violation of sexual integrity and is hopeful that future decisions will continue to recognize the equality harms that image-based sexual violence causes women and girls. R v. Jarvis will act as a critical precedent in future cases, as technology enables new forms of violence against women to emerge.
The Women’s Legal Education and Action Fund (LEAF) works to advance the substantive equality rights of women and girls through litigation, law reform, and public education. Since 1985, we have intervened in landmark cases that have advanced equality in Canada—helping to prevent violence, eliminate discrimination in the workplace, provide better maternity benefits, ensure a right to pay equity, and allow access to reproductive freedoms. For more information, please visit www.leaf.ca.
Adair Goldblatt Bieber LLP
T: 416-595-7170 x2003
Alex Fidler Wener
Adair Goldblatt Bieber LLP