ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 11221
Date: 2015/11/10

B E T W E E N:

HER MAJESTY THE QUEEN

J. Perfetto, for the Crown

• and -

RYAN JARVIS

S. Chapman & J. Micallef, for the Accused

Accused

HEARD: April 9, 2015

REASONS FOR JUDGMENT

A.J. GOODMAN J.:

[1] This is a case of a high school teacher who surreptitiously recorded his female students while at school. Following the dismissal of the accused’s challenge under the Charter of Rights and Freedoms, he was arraigned on one count of voyeurism, contrary to s. 162(1) (c) of the Criminal Code, R.S.C. 1985, c. C-46, as amended by R.S.C. 2005, c. 32, s. 6. The offences are alleged to have occurred in the City of London in June 2011. The accused pleaded not guilty to the charge.

[2] The trial evidence consisted of an agreed statement of facts followed by the submissions of counsel. Due to scheduling constraints, this decision was delayed until November 2015.

[3] The sole issue in this case is whether the conduct complained of is subject in law to criminal sanction in accordance with the relevant Criminal Code provisions.

Agreed Statement of Facts

[4] At the time of the charges Mr. Ryan Jarvis (“Jarvis”) was a high school teacher at Beal Secondary School (“Beal”), which is part of the Thames Valley District School Board, located at 525 Dundas St. in London, Ontario. Jarvis taught and supervised many of the students at the school. He had a positive rapport with the students. There have never been allegations made by a student that the accused has ever done anything inappropriate. At the time of the allegations, Jarvis was in good standing at the school and with the school board. Prior to the allegations, Jarvis was unaware of any allegations impugning his teaching abilities or how he dealt with the students that he taught and supervised.

[5] During the time frame set out on the indictment, while teaching at Beal, Jarvis recorded videos of students and in one case a fellow teacher at Beal using a pen camera. The videos range in length from six seconds to just over two and a half minutes. All subjects were fully clothed. Jarvis shot the videos at different locations in and about the school, including hallways, classrooms, the cafeteria, staff offices and outside of the school.

[6] During many of the videos, announcements over the Public Announcement system at Beal can be heard, including the national anthem. At times, Jarvis is heard engaging in conversation with students about various school related topics.

[7] The students were between fourteen and eighteen years old and were unaware that the videos were being taken. Jarvis never obtained the consent of any of the students to video and/or audio record them. Each student had a subjective expectation of privacy that they would not be surreptitiously audio and/or video recorded by Jarvis. Jarvis was never given the school’s permission to video and/or audio record the students. Jarvis never told any of the other teachers or staff at Beal or the school board that he was making the recordings at issue in this case.

[8] There was board policy in effect at the time Jarvis made the video recordings. That policy prohibited Jarvis’s conduct in making the recordings in the manner that he did.

[9] The pen with which the videos were taken can be used to write. It also can be used as a USB device to copy data, such as medical records, financial statements and other personal documents, to and from other devices (i.e. computers). When used as a camera, rather than a USB device or to write, the pen camera does not have the ability to zoom in or out. It does not have a picture screen capable of showing what the camera has or is taking pictures or videos of. The only function on the pen, when used as a camera, is an on-off switch which begins and ends the recording. Although the contents of the pen camera can be downloaded for viewing, editing and the like, viewing, editing or deleting videos cannot be accomplished on the pen camera itself.

[10] Beal is equipped with video cameras both inside and outside of the school. The school halls and grounds are under 24-hour camera surveillance. There is signage present to this effect. Inside the school, these cameras are mounted to the walls near the ceiling. Outside the school, these cameras are affixed to the building. These cameras are essential components in the proper functioning of the school by contributing to a safe and secure learning environment for the students. These cameras do not audio record and are readily visible to those persons inside and outside the school. The direction that these cameras point is not something that is manipulated by the teachers at Beal. Teachers at Beal are not permitted to access and copy the video surveillance from these cameras for their personal use.

[11] The police involvement in this matter began on June 21, 2011, when they received a complaint from school officials at Beal alleging that a teacher (Jarvis) was surreptitiously recording some of his students. In particular, Harry Gorman (“Gorman”), a fellow teacher at Beal, attended the principal, Mr. Donald MacPherson’s (“MacPherson”) office on June 20, 2011, and reported that he had made frequent observations of Jarvis over a number of months and that he believed Jarvis was using a recording device inside his pen to record students. Gorman observed what he believed to be a pen camera when Jarvis was around female students during such things as track and field training, but also inside the school. On occasion, Gorman tried to jump in front of Jarvis or call his name at which point Jarvis put the pen away.

[12] After hearing what Gorman told him about Jarvis’s use of the pen, Principal MacPherson became concerned for the safety and security of the students. On the advice of Superintendent Sereda, MacPherson set out to secure the pen from Jarvis. On the afternoon of June 21, 2011, MacPherson was making preparations to have a representative from the teaching federation available for Jarvis. He co-incidentally walked by Jarvis in the hallway. Jarvis was leaning against a locker speaking with a female student and holding a pen upright from which MacPherson observed a red light emitting. MacPherson observed Jarvis to have his arm bent across his chest holding the pen in a vertical position around his shoulder area, with the red light coming from the upper or non-writing end of the pen. Later, MacPherson located Jarvis in a computer lab standing adjacent to a female student who was seated. Jarvis was speaking with her. MacPherson noticed that Jarvis had his arms crossed and was holding the pen so that the top, non-writing part of the pen was visible. Again MacPherson could see a red light emitting from the top of the pen. When Jarvis saw MacPherson, he put the pen in his pants pocket. MacPherson asked Jarvis to accompany him to an empty classroom wherein MacPherson requested to “see” the pen that Jarvis had been seen holding. When asked by MacPherson for the pen, Jarvis answered “Oh, I don’t have it, it must be in my office”. MacPherson advised the accused that it was the pen that he had in the computer lab and that he had just put it in his pants pocket. At that point, Jarvis took the pen from his pocket and handed it to MacPherson. This pen was provided to the police by MacPherson. The pen described by Gorman matched the description of the pen seized by MacPherson.

[13] After the police received the pen camera from Principal MacPherson, Detective Howe of the London Police Service reviewed three of the videos and then obtained a warrant to view the remainder of the contents. All the electronic contents of the pen camera are included in the attached CD. All were taken by Jarvis. No other person had possession or access to the pen camera. The pen camera contained 19 videos that were recovered by police, two of which were deleted, leaving only 17 active videos. There were 30 different individuals within these videos, 27 were female students at Beal. In addition, there was indication of other videos being stored on the camera but these were not recoverable. There was no other data on the pen camera. Continuity of this device and the contents are not in dispute in these proceedings. None of the electronic contents of the pen camera were catalogued or organized in any way.

[14] On June 29, 2011, the London Police Service executed a warrant at 127 Grand Avenue in the City of London, Ontario. Prior to this, on June 22, 2011, Officer Campbell attended at 127 Grand Avenue and spoke with Jarvis, requesting access to his computers. He declined. 127 Grand Avenue is the residence of Jarvis. Jarvis co-habitated with Kyle Mackay. They shared some of the space in the residence, although Jarvis had a separate bedroom. Police searched the residence including the room that belongs to Jarvis. Several electronic devices, including laptop computers and thumb drives, were seized from various locations in the residence. In addition, from Jarvis’s room, police seized an external hard drive, a digital camera, a number of DVRs and CDRs and a desk top computer, including the computer tower. A photo of this computer tower, as it was found by police in the execution of the warrant, is attached to this agreed statement of facts. This police physically examined the computers and other devices found in the residence. In examining the computer system from Jarvis’s room, police determined that there was no hard drive present and was of little use. MacKay told police that he believed that this hard drive had crashed although it is unclear how he was aware of this. The external hard drive found in Jarvis’s room was also analyzed by police. It was determined that most of the files on that external hard drive were placed there on June 23, 2011. Moreover, the computer storage area and e-mail that Jarvis used at Beal was searched by the schooI board’s manager of information technology services. No evidence of a criminal offence was found on any of the devices seized and searched and there was no evidence that the pen camera had been plugged in to any of the devices seized. The search by the school board’s manager of information technology services did not lead to the discovery of any evidence of a criminal offence. After reviewing all of the images on the camera, Detective Howe contacted a Crown attorney for advice on whether or not the images constituted a sexual purpose under s. 162(1) (c) of the Criminal Code.

Positions of the Parties

[15] Mr. Perfetto, on behalf of the Crown, submits the accused was observed to be surreptitiously using a pen camera or ‘spy pen’ while discharging his duties as a teacher.

[16] Crown counsel’s principle argument is premised on the notion that the students had a reasonable expectation of privacy in the school. The fact security cameras were posted in various locations around the school does not diminish the objective expectation of privacy that is clearly promoted to enhance a safe and secure learning environment. The accused’s use of the spy pen camera in close proximity to each female student was contrary to their rights to be free from such activity and gave rise to a power imbalance between student and teacher.

[17] Mr. Perfetto argues that the accused’s purposeful positioning to the student negated the use of a zoom device. Crown counsel submits that the images focused primarily on the female students’ breasts and the angle of filming, for the most part, can only be considered for the dominant purpose of a sexual nature.

[18] Ms. Chapman, on behalf of the accused submits that the students did not have a reasonable expectation of privacy. Counsel argues that there is little guidance from the appellate courts with respect to s. 162(1)(c) and draws on the jurisprudence and analogy surrounding s. 8 Charter principles. Counsel says that while technology can enhance the senses, that does not equate to a finding of a reasonable expectation of privacy. Further, the fact of the recording is superfluous to the question of a reasonable expectation of privacy. School policy may also have some relevance to the questions, along with security video cameras placed throughout the school, all known to the parties.

[19] Ms. Chapman submits that in analyzing the question “for a sexual purpose” one has to look at such wording found in other sections of the Criminal Code. For example, in s. 151 - sexual interference, s. 152 - invitation to sexual touching, and ss. 153(1) and 153.1 – sexual exploitation, the words “for a sexual purpose” are found. Those offences are specific intent offences. Ms. Chapman says that the dominant purpose or characteristic in this case and with these captures were not for a sexual purpose. Any ambiguity in that regard must inure to the benefit of her client and result in an acquittal.

Legal Principles

[20] Section 162(1)(c) of the Criminal Code reads:

(1) Every one commits an offence who, surreptitiously, observes -- including by mechanical or electronic means – or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(c) the observation or recording is done for a sexual purpose.

[21] The offence is committed where a person: (i) surreptitiously; (ii) observes or makes a recording; (iii) of a person who is in circumstances that give rise to a reasonable expectation of privacy; and, (iv) makes the recording for a sexual purpose.

[22] In this case, the accused concedes he used his pen camera to make various recordings of female students on different occasions at school and that such activity was conducted in a surreptitious manner. The question remains whether the targets of these recordings enjoyed a reasonable expectation of privacy in the circumstances and whether the recordings were done for a sexual purpose. As mentioned, the issue in this case is a narrow one: what is the legal interpretation of s. 162(1)(c) with respect to the fact pattern presented here?

Analysis

Reasonable Expectation of Privacy

[23] Ms. Chapman emphasized that the approach to be taken in addressing this question involves consideration of the principles and application of s. 8 of the Charter. Various cases involving the corollary rights of an accused in situations of an objective expectation of privacy ought to inform this court’s understanding of a person’s reasonable expectation of privacy under s. 162(1) of the Criminal Code.

[24] In R. v. Rudiger, 2011 BCSC 1397, the Supreme Court of British Columbia dealt with many of the same legal issues that arise here, albeit the facts are dissimilar (the accused used a camera to zoom in on young girls' genital areas and buttocks). As the trial judge held in Rudiger, at para. 83:

Second, s. 8 is overwhelmingly concerned with properly balancing the state's interest in law enforcement activity with the countervailing privacy interests of citizens.

[25] In R. v. Tessling, 2004 SCC 67, Binnie J. described, at para. 17, the weighing of privacy interests against law enforcement interests required when determining the existence of a reasonable expectation of privacy under s. 8 as follows:

At the same time, social and economic life creates competing demands. The community wants privacy but it also insists on protection. Safety, security and the suppression of crime are legitimate countervailing concerns. Thus s. 8 of the Charter accepts the validity of reasonable searches and seizures. A balance must be struck, as held in Hunter v. Southam, supra, at pp. 159-60, per Dickson J.:

... an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement.

[26] In Rudiger, Justice Voith, at paras. 85-87, discusses the application of s. 8 Charter analysis to the reasonable expectation of privacy under s. 162(1) of the Criminal Code.

[27] Justice Voith continued his discussion on reasonable expectation of privacy under s. 162(1), at para. 110:

Technology has the potential to dramatically change the reality of all such considerations and expectations...

[28] Justice Voith concluded that caregivers had a reasonable expectation of privacy involving images of their children playing in a public park.

[29] In R. v. Lebenfish, 2014 ONCJ 130, Green J. found that nude sunbathers on a clothing-optional beach had no such reasonable expectation of privacy, given the signage and the intended use of the beach, amongst other factors.

[30] I am satisfied that whether a reasonable expectation of privacy exists, in a given case, is based on an assessment of the totality of the circumstances.

[31] One can conceive of situations or examples where a person, sitting in a classroom has her privacy interests interfered with...

[32] I note Lamer C.J.’s statement in Schreiber v. Canada (Attorney General), 1998 828 (SCC) that privacy "is closely linked to the effect that a breach of that privacy would have on the freedom and dignity of the individual."

Did the students at the school have a reasonable expectation of privacy?

[33] With this conceptual backdrop, I turn to whether the students at the school had a reasonable expectation of privacy.

[34] The school in question, while open to students without restriction is supervised and controlled. I understand that the general public is excluded from the school. The institution has security cameras placed at various strategic locations to ensure the safety of the students and staff.[^1]

[35] The accused emphasized that the school is generally a public place and the cameras record the activities within its walls.

[36] In Tessling, Binnie J. discussed the issue of privacy at para. 40.

[37] Defence counsel argues that my assessment ought to follow the analysis set by courts in determining whether an expectation of privacy exists under s. 8 of the Charter.

[38] For example, a person who is within his or her home likely has a sense and expectation of absolute or near absolute privacy.

[39] As observed by other courts, including Rudiger, technology has the potential to dramatically change the reality of all such considerations and expectations.

[40] I am mindful of the fact that s. 162 of the Criminal Code already includes the requirement that the accused has made a surreptitious recording.

[41] In this case there is audio with the video, but the recordings are not enhanced.

[42] The Crown attorney argues that privacy must be considered in the circumstances.

[43] In Rudiger, Voith J. held the following, at para 113:

The suggestion that because a person is in a location which is ostensibly public they can no longer continue to have any reasonable expectation of relative privacy is not tenable...

[44] Again, in Tessling, at para. 42, Binnie J. said the following:

Expectation of privacy is a normative rather than a descriptive standard.

[45] In R. v. Keogh, 2011 ABQB 48, I note that the trial judge disagreed with the approach the provincial court judge took in Rudiger.

[46] It may be that a female student’s mode of attire may attract a debate about appropriate reactions of those who observe such a person leading up to whether there is unwarranted and disrespectful ogling.

[47] There is no dispute that the female students had a subjective expectation of privacy.

[48] Each subject in question was in a classroom or outside of the school, with the actual or imputed knowledge that there are security cameras in the school at various locations.

[49] Here, the recordings are of diverse and somewhat prolonged duration in circumstances where the students’ spatial integrity in or about the school was impacted in a most surreptitious manner. All this gives rise to an expectation of privacy by the students. I find that the female students had an expectation of privacy that was, in fact, reasonable. The Crown has proven this essential element.

For a sexual purpose

[50] The final part of the test requires that that the video recordings had been made for a "sexual purpose".

[51] I appreciate that s. 163 of the Code employs language somewhat dissimilar to that found in s. 162.

[52] The seminal case of R. v. Sharpe, 2001 SCC 2, addressed s. 163 of the Code, yet is instructive as it pertains to the discussion of a “sexual purpose”.

[53] The determination of whether an image or images are intended to cause sexual stimulation must be assessed on the totality of the evidence.

[54] The leading case of Sharpe from the Supreme Court and its progeny emphasize the importance of context.

[55] For example, in Rudiger, the circumstantial evidence pointing to a sexual purpose was quite compelling.

[56] As for the legal definition of “for a sexual purpose” for the purpose of this section, I tend to find favour with Ms. Chapman’s argument.

[57] I also agree with Ms. Chapman in her discussion and reference to related offences found in the Criminal Code that employ the specific term, “for a sexual purpose”.

Were the pen camera images of the students’ breasts or cleavage recorded for a sexual purpose?

[58] Where the Crown establishes beyond a reasonable doubt that the recordings or images depict the breasts, genitals or other regions of the body, a court must then consider whether the images are likely to stimulate a sexual interest in the view: R. v. J.E.I., 2005 BCCA 584.

[59] In this case, it is arguable that a reasonable viewer, looking at the clips objectively and in context, would perceive that these depictions of the students’ cleavage were intended to cause sexual stimulation to some viewers.

[60] There was no evidence advanced in this trial regarding the accused’s purpose or sexual interest in recording the students’ cleavage or breasts.

[61] As such, I am obliged to come to my own conclusion as to what the actual recordings depict and their nature.

[62] File recordings of a student’s overall face and body without any profound focus on the cleavage are found in images entitled Active (“A”)...

[63] File recordings that were not able to be viewed due to playback error or that were inconclusive include images entitled: A1, A13 and unallocated cluster files 4, 8 and 16.

[64] Videos that depicted several students being captured at the same time include images entitled: A3 (1.23); A4 (56 sec.); A5 (2.23) and A6 (67 sec.).

[65] Most importantly, file recordings that appeared to be primarily focused on the cleavage of a female student include five images entitled: A15 (31 sec.); A16 (50 sec.); Deleted file 0020 (15 sec.); Deleted file 0021 (56 sec.); and unallocated cluster number 7 (5 sec.).

[66] In his submissions, Crown counsel enumerated the following facts that he said should be evaluated by me in my consideration of this issue:

a) The surreptitious nature of the video recordings;
b) The subject and content of the videos being only female students;
c) The camera generally pointing downward towards the students’ cleavage;
d) Numerous video captures, primarily focusing on the students’ breasts; and,
e) In some of the clips, the camera is set up so as to only capture a student’s breasts.

[67] With respect to these points, I make the following observations:

a) The recordings were not found with other adult or child pornographic material;
b) Most of the clips depict the student’s entire face and body;
c) The pen camera is static and not manually controlled during the recordings;
d) There is no nudity;
e) There are no captures of undressing or explicit sexual activity; and,
f) The videos were all recorded surreptitiously.

[68] The determination of whether images would be reasonably perceived as intended to cause sexual stimulation to some viewers is also based on the image not on what was in the mind of the person who was in possession of or the maker of the recording or image.

[69] I note that there is no recording of the genital areas, exposed breasts or buttocks of the female students.

[70] In R. v. R.R.K., 2010 ONSC 330, Dambrot J., in considering whether the breasts of a prepubescent female constituted "sexual organs" addressed various features of the videotape made by the accused.

[71] Clearly, the breasts of these students are sexual organs, unclothed or otherwise. However, that in and of itself does not end the inquiry for the purposes of interpreting “for a sexual purpose.”

[72] The pen camera that was used to record the video was obviously positioned, for the most part, on the female students’ faces, bodies and cleavage or breasts, and on several occasions, exclusively so.

[73] In this case the video does not dramatically magnify on the various students, but permanently captures or records the students for varying intervals.

[74] I accept that there are situations where individuals are clothed to at least some degree, and may invite a finding that the recording was done for a sexual purpose.

[75] As mentioned, what occurred in this case is recording of students’ faces and bodies with at least five video captures directly or primarily focused on the cleavage of three particular female students.

[76] Arguably, the focus of the pen camera, on these five occasions was on the female student’s cleavage or breasts.

[77] Unlike other cases proffered by the Crown attorney, the students here are fully clothed and not so situated, that I am persuaded that the recordings, even with images that predominately display the students’ cleavage, have as their focus the student's sexual organs. While a conclusion that the accused was photographing the student’s cleavage for a sexual purpose is most likely, there may be other inferences to be drawn that detract from the only rationale conclusion required to ground a conviction for voyeurism.

Conclusion

[78] In the circumstances of this case, I conclude that the accused’s behaviour was morally repugnant and professionally objectionable. Whether there was a breach of his obligation to his profession and conduct unbecoming an educator is a matter for another forum.

[79] In my opinion, the accused’s behaviour or acts of surreptitiously recording the cleavage of female students in the school in the manner presented here was a breach of their reasonable expectation of privacy but is not captured under s. 162(1) (c) of the Criminal Code. Based on the totality of the evidence, I am not satisfied beyond a reasonable doubt that the only rational conclusion is that the limited pen camera images of the female students’ cleavage or breasts were made for a sexual purpose. For all of the aforementioned reasons, I find the accused not guilty of the offence.

“A. J. Goodman J.”
A. J. Goodman J.

Released: November 10, 2015

[^1]: While the locations of the various security cameras at Beal were not ascertained, it is not of crucial import to my overall analysis.