On Tuesday, March 6, 2018, the Supreme Court of Canada (SCC) granted LEAF leave to intervene in the case of R. v. Jarvis. At issue in the case is whether a male high school teacher who used a camera pen to secretly film his female students’ cleavage committed the criminal offence of voyeurism, found in section 162(1) of the Criminal Code.
To be guilty of voyeurism, Mr. Jarvis must have surreptitiously observed his students for a sexual purpose in circumstances in which they had a reasonable expectation of privacy. The Ontario Court of Appeal (ONCA), using a narrow, location-based assessment of privacy, concluded that the students had no reasonable expectation of privacy in the school, due primarily to the fact that the school is “public”. Accordingly, the ONCA found that Mr. Jarvis’ secret filming of his female students’ breasts while they attended school was not a criminal offence.
The Crown appeal raises the issue of whether the students have a reasonable expectation of privacy, such that they will be protected from being filmed for a sexual purpose without their knowledge or consent, while attending school.
LEAF’s submissions will urge the Court to interpret the voyeurism provisions in a manner that enhances women’s equality, taking into account the particularly gendered nature of voyeurism, which disproportionately affects women and girls. It will advocate for a contextual approach to privacy that respects women’s liberty, autonomy, and bodily and sexual integrity, in both private and public spaces.
LEAF will emphasize that the ONCA’s location-based analysis of privacy denies women the right to sexual integrity and autonomy while in public spaces, and communicates a message to women and girls that they enter the public and quasi-public sphere “at their own risk”. Women and girls must be entitled to some protection from surreptitious sexual recordings in public and quasi-public spaces – anything less risks reinforcing the discriminatory presumption that women have no place in public life, or that women who enter public spaces are “fair game” for this type of sexual violence.
LEAF will further argue that this contextual analysis of privacy must take into account women and girls’ subjectively held privacy expectations. In the context of this case, LEAF will argue that it is “reasonable” for girls to expect their teachers, who occupy a position of trust and authority, to respect and safeguard their autonomy and well-being. Further, equality values demand that schools be treated as places where it is reasonable for girls to expect privacy from sexual intrusion, particularly from those in positions of power.
LEAF intends to identify the importance of s. 162(1) for promoting the equality of women and girls in the context of the digital era and the consequent rise of online misogyny and harassment. This case will be the first important test of the scope of the relatively new criminal prohibitions on voyeurism. It will also have implications for the even newer criminal restrictions on non-consensual distribution of intimate images, sometimes referred to as “revenge pornography”, which also apply only to images that were made in circumstances in which the complainant had a reasonable expectation of privacy. These provisions are of critical importance for women’s equality in the age of camera phones and social media. A broad interpretation of their scope, including what circumstances engage a reasonable expectation of privacy, is therefore of vital importance.
LEAF is grateful to our pro bono counsel, Gillian Hnatiw of Adair Goldblatt Bieber LLP, for her representation of LEAF in our motion for leave to intervene, alongside LEAF counsel Karen Segal.
The Ontario Court of Appeal judgment is available here.
About Women’s Legal Education and Action Fund (LEAF)
Since April 17, 1985, when equality rights were enshrined in sections 15 and 28 of the Charter of Rights and Freedoms, LEAF has used litigation, law reform and public education to work toward equality for women and girls. LEAF intervenes in key cases to ensure that when courts interpret equality rights, there will be a systemic improvement in women’s lives. For more information about LEAF, visit www.leaf.ca.
For media inquiries, please contact:
Karen Segal, LEAF Counsel
416.595.7170 x 226