The Women’s Legal Education and Action Fund (LEAF) files factum in R. v. Jarvis, to argue for women’s right to meaningful protection from sexual intrusions in both private and public life.
On Friday, April 6, 2018, LEAF filed its factum at the Supreme Court of Canada (the Court) 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 of the Criminal Code. To be guilty of voyeurism, Mr. Jarvis must have recorded his students in circumstances in which they had a reasonable expectation of privacy. The Ontario Court of Appeal, 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 Court of Appeal 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 had a reasonable expectation of privacy in the circumstances, such that they would be protected from being filmed for a sexual purpose without their knowledge or consent while attending school.
LEAF urges the Court to apply an equality lens to the interpretation of the voyeurism provision, which takes into account the highly gendered nature of this crime. It advocates for a broad and contextual definition of “circumstances that give rise to a reasonable expectation of privacy”, which recognizes women’s reasonably held privacy expectations in both private and public places and provides meaningful protection for women’s sexual integrity in public life.
Voyeurism disproportionately effects women. By defining “privacy” in narrow, location-based terms, the Court of Appeal’s decision effectively denies women protection from voyeuristic intrusions in any locations deemed “public”. This dramatically narrows the scope of protection provided by section 162 and makes women and girls more vulnerable to the very harm this provision protects against.
Further, it reflects discriminatory attitudes towards women and girls. Historically, “respectable” women were expected to remain in the home, away from public view. Women who engaged in public life were commonly deemed loose or immodest, and their privacy and sexual autonomy interests considered unworthy of protection. The majority’s location-based conception of privacy reinforces these harmful gender stereotypes: it effectively makes the protection of section 162 contingent on the complainant remaining secluded in private. This presents women with a wholly unpalatable choice: accept the risk that you will be the subject of technology-facilitated sexual violence, or stay home.
In addition, the Court of Appeal’s approach reflects a victim-blaming mentality: it places the onus on women, as the primary targets of voyeurism, to ward off intrusions to their sexual integrity by dressing and behaving in a “respectable” way. This reinforces the dangerous stereotype that women are responsible for guarding their sexual integrity in the face of male aggression, and that women who dress or act in a certain way are ‘asking for’ sexual violence by failing to behave more cautiously or modestly.
In other privacy contexts, the Court has recognized that privacy is a flexible concept, determined based on the totality of the circumstances, not just location. LEAF urges the Court to use such an approach in this case. To properly protect women and girls’ sexual integrity and equal right to participate in public life, the Court must adopt a broad and contextual definition of privacy – free from discriminatory myths and stereotypes – that is informed by women and girls’ equality rights.
LEAF’s factum is available here.
LEAF is grateful to pro bono counsel Gillian Hnatiw and Alex Fidler-Wener of Adair Goldblatt Bieber LLP, and LEAF counsel Karen Segal, for their representation in this case.
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