Whether recordings were for sexual purpose had to be decided on objective standard

Accused was high school teacher who used camera pen to surreptitiously take videos of female students which focused on their chest and cleavage areas. Accused was charged with voyeurism contrary to s. 162(1)(c) of Criminal Code. Trial judge found breach of accused’s right under s. 8 of Canadian Charter of Rights and Freedoms, but admitted evidence of videos recorded on camera pen under s. 24(2). On Crown’s appeal, it was held that trial judge erred in law in failing to find accused made recordings for sexual purpose, nevertheless, accused’s acquittal was upheld on basis trial judge had also erred in finding that students were in circumstances that give rise to reasonable expectation of privacy. Crown appealed. Appeal allowed; conviction entered. Privacy issues under law should be interpreted regarding personal autonomy and sexual integrity. Main reason for voyeurism law was to protect individuals’ privacy and sexual integrity, particularly from new threats posed by abuse of evolving technologies. Narrow reading of law would undermine legislation’s intention that offence prohibited surreptitious observation or visual recording that amounted to sexual exploitation or that represented most egregious breaches of privacy. When entire context was considered, there was doubt that students’ circumstances gave rise to reasonable expectation that they would not be recorded in manner they were. Privacy interests under law could only be infringed if they were recorded or observed in way that caused them to lose control over their image and infringed their sexual integrity. Decision of whether recordings were for sexual purpose had to be decided on objective standard and considering all circumstances. Observation or recording would be done for sexual purpose where subject of observation or recording was reasonably perceived as intended to cause sexual stimulation in observer. Students had reasonable expectation of privacy regarding how their bodies would be observed in classrooms and hallways of their school and accused took videos that went beyond access that students allowed in this setting, thus infringing their autonomy. Videos were sexual and for sexual purpose.

R. v. Jarvis (2019), 2019 CarswellOnt 1921, 2019 CarswellOnt 1922, 2019 SCC 10, 2019 CSC 10, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); reversed (2017), 2017 CarswellOnt 15528, 2017 ONCA 778, K. Feldman J.A., David Watt J.A., and Grant Huscroft J.A. (Ont. C.A.).