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Law Times • OcTOber 30, 2017 Page 5 www.lawtimesnews.com OCA rules on privacy in voyeurism case BY ALEX ROBINSON Law Times L awyers say a recent Court of Appeal decision to uphold the acquittal of a teacher on voyeurism charges will have implications for privacy interests. In R. v. Jarvis, the Crown appealed the acquittal of Lon- don, Ont. teacher Ryan Jarvis, who recorded videos of female students and a colleague using a pen camera. The videos were filmed during conversations Jarvis had with the students and focused on their chests, the deci- sion said. At issue in the appeal were two parts of s. 162(1)(c) of the Criminal Code, which says a surreptitious recording of a person made in circumstances where they have a reasonable expectation of privacy consti- tutes voyeurism if it's made for a "sexual purpose." The trial judge determined that the students did have a rea- sonable expectation of privacy, but the Crown had not proven beyond a reasonable doubt that the videos were created for a sexual purpose. The Court of Appeal found the reverse was true. The court ruled that while the teacher had breached his relationship of trust with the students by secretly tap- ing them for a sexual purpose, they did not have a reasonable expectation of privacy. Jane Bailey, a professor at the University of Ottawa's common law section, says the decision is a concerning outcome from a privacy perspective and has par- ticular implications for girls and young women. She says that while the appel- late decision's reversal on sexual purpose is a correct conclu- sion, the finding that there was no reasonable expectation of privacy could present broader problems. "What the appellate gives with one hand it takes away with the other," she says. She says the decision seems to suggest that students might not have a reasonable expectation of privacy anywhere in schools except for in places they undress such as washrooms or locker rooms. The Court of Appeal deci- sion found the trial judge erred by conf lating the concept of pri- vacy with that of surreptitious recording, which are two sepa- rate requirements of the offence. The court determined that students would not have an ex- pectation they will not be ob- served in the parts of the school where students congregate, as there are security cameras in many of them. "Clearly students expect that a teacher will not secretly ob- serve or record them for a sexual purpose at school," Justice Kath- ryn Feldman wrote in the deci- sion on behalf of a two-judge majority. "However, that expectation arises from the nature of the re- quired relationship between stu- dents and teachers, not from an expectation of privacy." Jen Micallef, one of the law- yers who represented Jarvis in the appeal, says the decision sets out that there are separate ele- ments of the offence. "The surreptitiousness can't also be a substitute for a reason- able expectation of privacy," she says. "You can't say, 'Oh, well' because they didn't know it was happening. They would expect that wouldn't happen and, there- fore, that particular place would become private." Bailey says separating the expectation of privacy from the idea of being surreptitiously filmed is problematic. "I think here the problem was extracting the expectation of privacy from essentially the right to be protected against having surreptitious photos tak- en of you for a sexual purpose, which implicates sexual integ- rity automatically and bodily integrity and is very bound up with the notion of privacy," Bai- ley says. A lone dissenting judge on the three-judge panel, Justice Grant Huscroft, agreed that the recording was made for a sexual purpose, but he disagreed with the determination that the stu- dents did not have a reasonable expectation of privacy. Huscroft found that a loca- tion-based approach to privacy protection is problematic and that, while location is important, it is not determinative. "No doubt, students will be seen by other students, school employees and officials while they are at school," he wrote. "But this does not mean that they have no reasonable expec- tation of privacy. In my view, the students' interest in privacy is entitled to priority over the interests of anyone who would seek to compromise their per- sonal and sexual integrity while they are at school." Huscroft added that the rea- sonable expectation of privacy is a "normative" concept rather than a "descriptive or predictive" one and it must be established in "particular rather than general circumstances." A spokeswoman for the Min- istry of the Attorney General de- clined to comment on the deci- sion and refused to say whether the Crown would seek leave to appeal it. Lawyers say the dissent by Huscroft makes an appeal likely. Micallef says there have also been a number of decisions across the country that have dealt with the issue of reasonable expectation of privacy differ- ently. The issue will likely invite further clarification from the Supreme Court, she says. Micallef adds that these kinds of cases are going to be inf luenced by technology and what it allows people to do in public spaces they wouldn't oth- erwise be able to do. "The dialogue around the offence itself is going to be con- tinuing and ever-changing," she says. LT NEWS Jane Bailey says a recent Court of Appeal ruling is problematic for privacy interests. Visit our new website to find the latest in Ontario legal news, opinion, videos and expert commentary. 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