Teacher Convicted of Voyeurism: Recording Students Was a Clear Violation of Their Privacy Rights

By: Teresa Haykowsky, James Lingwood, Dave Risling, and Rakhi Pancholi

In 2010 and 2011, an Ontario high school teacher used a camera concealed in a pen to surreptitiously take videos of 27 female students, aged 14 to 18 and a female teacher. The videos focused on their chests and cleavage area and lasted from seconds to a few minutes in length. The students were not aware they were being recorded by the teacher.  A school board policy in effect at the relevant time prohibited recordings of the kind done by the teacher.

The teacher was charged with voyeurism under section 162(1) of the Criminal Code of Canada, which makes it an offence for a person to surreptitiously observe or record another person who is in circumstances that give rise to a reasonable expectation of privacy, if the observation or recording is for a sexual purpose. The two key issues were whether the teacher had made the recordings for a sexual purpose and whether the subjects of the videos were in circumstances that gave rise to a reasonable expectation of privacy.

The main issue on the appeal in R. v. Jarvis, 2019 SCC 10 to the Supreme Court of Canada was whether the students had a reasonable expectation of privacy at school. Today, the Supreme Court allowed the Crown’s appeal and entered a conviction for voyeurism.

Chief Justice Wagner said the recordings left no doubt that, in the circumstances, the students had a reasonable expectation of privacy and this was breached. Some of the highlights of excerpts of the decision are as follows:

• The determination of whether a person has a reasonable expectation of privacy requires an assessment of the entire context in which the recording took place;
• Privacy is not an all-or-nothing concept. Simply because a person is in circumstances where they do not expect complete privacy does not mean they waive all reasonable expectations of privacy. The fact that a person knows they will be observed by others, including by strangers, does not in itself mean they forfeit all reasonable expectations of privacy in relation to observation or visual recording;
• Students’ expectations of privacy with respect to observation and recording are different and must be lower in the common areas of a school than when they are in traditionally private locations, such as bathrooms.
• A high school is not an entirely “public” place. Access to schools is usually restricted to certain persons, such as students, teachers and staff.  Schools are subject to formal rules and informal norms of behaviour, including with respect to visual recording, that may not exist in other quasi-public locations.
• There are profound differences between the effect on privacy resulting from the school’s security cameras and that resulting from the teacher’s recordings;
• Given ordinary expectations regarding video surveillance in schools, students would have reasonably expected that they would be captured incidentally by security cameras in various locations at the school and that this footage of them could be viewed or reviewed by authorized persons for purposes related to safety and the protection of property. It does not follow from this that students would have reasonably expected to also be recorded at close range with a hidden camera, let alone by a teacher for the teacher’s purely private purposes. The teacher’s videos were far more intrusive than casual observation or security camera that would reasonably be expected by people in most public places, and in particular, by students in a school environment;
• The teacher betrayed the trust invested in him by his students.
• It is difficult to imagine a trust or duty more important than the care and education of students by teachers. It is inherent in this relationship that students can reasonably expect teachers not to abuse their position of authority over them, and the access they have to them, by making recordings of them for personal, unauthorized purposes.

Chief Justice Wagner noted that given the content of the videos recorded by the teacher, the Court would likely have reached the same conclusion even if the videos had been made by a stranger on a public street.

Lessons Learned

Teachers are presumed to be in a relationship of trust and authority with their students. Despite being open to students and staff, schools are not public places and that impacts on the reasonable expectation of privacy students may have when at school. While their expectation of privacy may be lessened when it comes to safety and security, it may also be greater when it comes to the relationship of trust between students and teachers.

Privacy is not an “all or nothing” concept. A reasonable expectation of privacy may exist over more personal or intimate recordings and observations, even where there may be no reasonable expectation of privacy more generally.

• Students should be able to reasonably expect their teachers not to use their authority over and access to them to make recordings that objectify them for the teachers’ own sexual gratification;
• Students, teachers and staff must be provided with a safe and caring learning environment; schools are a place whether student physical safety, as well as their personal and sexual integrity, must be protected;
• A school policy prohibiting a teacher from making recordings of students of the type the teacher made would not be at odds with the expected norms of behaviour for a teacher at school;
• Students can reasonably expect the adults around them not to target them for visual recording without their permission.