COURT FILE NO.: 12-11221
DATE: 2019-08-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. Perfetto, for the Crown
- and -
RYAN JARVIS
Z. Kerbel, for the Defendant
HEARD: August 15, 2019
REASONS FOR SENTENCE
A.J. GOODMAN J.:
[1] After a successful appeal by the Attorney General to the Supreme Court of Canada, (citation: 2019 SCC 10), this matter was returned back to this Court for disposition. The events giving rise to a conviction for voyeurism occurred between January 2010 and June 2011, while Ryan Jarvis was employed as a teacher in London, Ontario.
[2] The Crown pursues a term of incarceration in the range of 12 to 18 months with probation and several ancillary orders.
[3] The defence seeks a conditional sentence of 18 months. There is no issue with respect to probation or the ancillary orders requested by the Crown. Given the chronology of the offence, a conditional sentence remains statutorily available.
Circumstances of the offence:
[4] The facts in this case have already been fully reflected in the trial and various appellate decisions.
[5] Briefly, on June 29, 2011, Ryan Jarvis, was arrested and charged with 27 counts of voyeurism. At the time of the charges, Mr. Jarvis was a high school teacher at B[…] Secondary School (“B[…]”), which is part of the Thames Valley District School Board. He had a positive rapport with the students. At the time of the allegations, Mr. Jarvis was in good standing at the school.
[6] During the relevant time frame, while teaching or otherwise engaged at the school, Mr. Jarvis secretly recorded brief videos of students - and in one case a fellow teacher - with the use of a pen camera. The pen camera was surreptitiously placed in his pocket in order to avoid detection while recording the images or videos. Mr. Jarvis taught and supervised many of the students he captured with his pen camera. These videos ranged in length from six seconds to just over two and a half minutes. The female students who were the subject of these video captures were between 14 and 18 years old. All students were fully clothed and were in locations in and about the school including hallways, classrooms, the cafeteria, staff offices and sometimes, just outside of the school.
[7] All were entirely unaware that the videos were being taken. Mr. Jarvis never obtained the consent of any of the students to video and/or audio record them. He was never given permission of the school to video and/or audio record the students. Mr. Jarvis never told any of the other teachers or staff at B[…] or the school board that he was making the recordings at issue in this case. Each student had a subjective expectation of privacy that they would not be surreptitiously audio and/or video recorded by Mr. Jarvis.
[8] After the police seized the pen camera from the Principal of the school, who had secured the device from Mr. Jarvis, Detective Howe of the London Police Service reviewed three of the videos and then obtained a warrant to view the remainder of the contents.
[9] All the digital contents of the pen camera were presented in evidence at trial. The pen camera contained 19 videos which were recovered by police, 2 of which were deleted, leaving only 17 active videos. There were 30 different individuals seen in these videos, of which 27 were female students. There was some audio recording associated with the video. Most, if not all of the images focussed entirely on the female students’ cleavage, sometimes from close up, other times when the offender filmed from a distance, with some videos panning to the subject’s face. At least five featured close-up, lengthy views of cleavage from angles both straight on and from above.
Positions of the Parties:
[10] Mr. Perfetto for the Crown seeks a term of 12 to 18 months in jail, along with probation and two ancillary orders. He argues that specific and general deterrence and most significantly denunciation are paramount along with the facts in this case.
[11] Mr. Perfetto acknowledges that his recommended sentence is somewhat precedent-setting, as no cases have advanced a determination of sentence in the range he proposes. Mr. Perfetto submits that employing the proportionality principles of sentencing supports his position as to the necessity of imposing a significant traditional jail sentence in the circumstances of this case.
[12] Mr. Kerbel, on behalf of his client, submits that the Crown’s proposal for sentence is excessive and harsh. He submits that a sentence of 18 months jail to be served conditionally in the community would serve both deterrent principles and assist with the rehabilitation of his client.
[13] Mr. Kerbel submits that the preponderance of case law provided by both Crown and defence counsel supports his position as to the appropriate sentence. Mr. Kerbel adds that there are many mitigating factors warranting a non-custodial institutional sentence as proposed.
Victim Impact Statements:
[14] Numerous victims provided their Victim Impact Statements in which they described how they were affected by these incidents once they were made aware of the defendant’s conduct. I have considered all of their statements and only reference a few now for illustrative purposes.
[15] Many of the victims described that they have diminished self-esteem with increased anxiety and other difficulties and emotional disconnects as an adult.
[16] The Victim Impact Statement from M. W. speaks of the psychological trauma she faced from the offences, which was re-experienced throughout the trial and the appeals. She was only 14 years old when these offences occurred, and was taken advantage of by someone in a clear position of power. “After hearing that someone who should hold all of these values and ethics did something as awful as this to me and other girls at the age of 14, it had lasting effects on me, even to this day, 9 years later. Imagine being raised to trust your teachers, to feel vulnerable around your teachers, and to have your teachers as another positive influence in your life that you can talk to or gather support from. Ryan Jarvis stripped me of all of those lessons each day he made the decision to record me in a provocative way…it has had an affect on my relationships with men, even today, 9 years later as a grown woman. I was taught by a man who had power, authority and held a position of trust was able to this to me, so why couldn’t everyone else? I have suffered from PTSD in many ways that I have noted above. I fear my safety with him in my vicinity. However, not only do I fear him for myself, but for other women”.
[17] Comments from the Victim Impact Statement from L.D. include: “that year, my attitude toward the education system completely changed. I lost trust in my teachers and no longer cared about excelling. I would like to remind you that the 27 underage girls found in these photos and videos did not consent to having their breasts digitally recorded by a man twice their age. We did not consent to having sexually suggestive photos and videos of ourselves saved and available to re-watch. Ryan Jarvis betrayed out trust, and has changed the way we will view our teachers, our bosses, and ourselves for years to come”.
[18] E.C comments in her Victim Impact Statement:” A teacher is someone you should be able to trust. They hold a position of power, authority and influence, and have a fiduciary obligation towards their students. You should feel safe within your school and as a child you have an innate trust for the authority figures around you. When this trust is breached it changes your sense of safety, perspective of the world and makes it extremely difficult to trust anyone again. I achieved straight A’s in all of my academics…It messed me up when I found out about the true nature of his intentions. Heading to university I was unaware of the damage it would cause me. This not only affected my schooling but my relationships as well. I pulled away from everyone I knew because no one understood how I felt. Mr. Jarvis preyed on us during a critical development stage in life. I don’t know if I’ll ever fully heal from this, but what I do know is that the act of violation is not ok, and there has been a lot of damage done to many innocent people”.
[19] Comments from L.M. provide: “(My daughter) L felt betrayed and unsafe. L had a relapse with her eating disorder, had panic attacks, and became paranoid. She was afraid to walk past his house on our street. She was put on medication for her anxiety and depression, which she is still on”.
[20] In her statement, T.M. states: “I felt like every conversation we had, every lesson that he taught to me and the rest of the students in his class was just a farce he used to exploit us. I found that after Ryan Jarvis’ true intentions were revealed, my trust in the education system was fleeting. Teachers were no longer the wonderful, flawless people I used to idolize and look up to, but instead the same as the people I passed on the street late at night. The same people I had to ask myself, ‘does this person pose a threat to me’? I’ve waited so long to finally have my chance to have my voice heard about what happened during this case, to finally have an opportunity to vent all this raw emotion I feel towards this encounter, and now I cannot even put it properly into words. So even though he taught me the importance of a properly structured essay, and the value of Shakespeare in modern literature, there will never be enough words in the English language to describe how I feel about this man and how he has impacted me”.
[21] The effects on these individuals is not only understandable but considerable, even as they have reached young adulthood.
Circumstances of the offender:
[22] Mr. Jarvis does not have a criminal record.
[23] A detailed pre-sentence report was completed. Amongst the probation officer’s comments include the following:
The subject described his relationships with all family members as being “fantastic and supportive”. There were no reports of domestic violence, substance abuse, sexual abuse, or mental health concerns in the family home…The subject has been residing common-law with Diane Fenn for the past eight years; both he and Ms. Fenn described a healthy and loving relationship. Ms. Armstrong described the subject and his wife as being kind and generous people. The subject is highly educated.
As soon as he graduated from teacher’s college; the subject was placed on the teacher’s supply list and began accepting positions as an English teacher. Within a short period of time he earned a long term occasional (LTO) status which basically equates a full time teaching position. The subject was a teacher for five years prior to the offence and was an assistant coach for the track and field team for three years. The subject expressed a great deal of pride and joy in talking about his teaching career. The subject reported no mental or emotional health concerns.
Ms. Armstrong is still asking herself why he did this because those actions do not fit the person he is. Ms. Fenn confirmed that she has never known the subject to use any form of pornography and he has never expressed any deviant sexual fantasies or behaviour. Everyone interviewed for this report also expressed how grateful they will be once the matter before the court today is dealt with so they can move forward. It was reported that those who worked with the subject and continued to support him, have faced period of diversity without staff members and students when the subject’s name is brought up by the media.
The subject expressed his remorse for committing this offence and empathy towards the victims of this offence. He expressed a desire and motivation to make amends for his actions. The subject clearly expressed how he violated the trust of not only the students but the parents who trusted him with the supervision of their children. The subject stated that he took responsibility for his actions as soon as he was caught and he has no hard feelings towards the person who reported the suspected behaviours.
[24] Mr. Jarvis underwent counselling sessions with Mr. Len Kushnier, a psychotherapist/consultant. A redacted Sex Offender Assessment and Treatment Report was entered into evidence. Comments contained in the report include:
Mr. Jarvis attended 5 one-hour therapy sessions between May 29 and July 15, 2019. A psychosexual history was ascertained which was helpful in clarifying the treatment targets and goals. The counseling covered sex offence specific themes.
In my individual counseling with Ryan, my approach was primarily a cognitive-behavioural one mixed with the Good Lives Model of treatment. Even though the Relapse Prevention model of treatment is less popular now as a CBT method, it has applicable components; namely, internal self-management supported by external supervision. This model proposes that if an offender can become fully cognizant of the precursors to offending, then he will be better able to effect adaptive coping strategies to avoid reoffending.
The counseling then turned to the "Good Lives" modality. This is similar to the "Life Skills" concept of a balanced, self-determined lifestyle, in which offenders strive to lead lives that are healthy, productive, and free of risk as a natural consequence of stability.
Ryan was very attentive in all the sessions and he gave very applicable examples of the material being discussed which affirmed for me that he had good comprehension of the issues and how they fit his situation. As noted above, Ryan remains motivated to address his problem areas and to gain further insight into the context of his offences. I believe he has made good progress in therapy to date. He is a suitable candidate for sex offence specific counseling.
[25] Mr. Jarvis addressed the Court and the gallery and expressed apologies and remorse to the students and others for his conduct.
Case Law:
[26] I have been provided with cases from both counsel on the issue of the appropriate sentence to be imposed. Although the law is clear that each case turns on its own specific facts, a careful review of these cases, to the extent I can find similarities to the case before me, does assist me in determining what an appropriate range is for the sentence to be imposed. Some of the cases relied upon by counsel are distinguishable on the facts or the circumstances of the particular offender, my intention is to only set out those cases that are somewhat similar to the issues in the case at bar.
[27] The Crown referred to several cases. In the case of R. v. Grice, 2008 ONCJ 476, [2008] O.J. No. 3870, the complainant and Grice were in the midst of a divorce, she started to have a shower and saw a hand holding a camera. She called 911. The offender denied any improper activity. Recorded data which had been erased from Grice’s phone was rehabilitated through a forensic analysis and showed the video of the complainant going into the shower. The Crown sought a sentence of 4 to 6 months jail, plus 2 years of probation. Defence sought a suspended sentence and probation. This case involved a guilty plea and the offender expressed remorse and responsibility for actions. He had no prior criminal record and was well-respected in the community. The court received a Victim Impact Statement which detailed psychological trauma from the offence.
[28] Although this occurred in a domestic setting, Grice had the mitigating factors of entering a guilty plea, and this offence only occurred once for a short period of time. The offender received a suspended sentence and was placed on probation for 18 months.
[29] In R. v. F.G., 2011 CanLII 13633 (NL PC), [2011] N.J. No. 95, 308 Nfld & PEIR 59, the offender was the stepfather of the victim, who was a minor. While the victim was in the shower, he installed a video recorder in her closet, aiming towards the bed. In the recorded video, F.G. picked up and sniffed underwear of the complainant. The video depicted frontal nudity of the young complainant. The Crown sought a sentence of 60 days incarceration. Defence sought a suspended sentence with probation, or in the alternative, a conditional sentence with probation. The offender entered a guilty plea, he had no prior criminal convictions and had sought help and counselling. He had a history of abuse as a child. There was evidence that he had a low risk to become involved in further criminal activities. The offender lived in the same house and was the complainant’s step-father, in position of trust. A Victim Impact Statement detailed profound psychological trauma. He was sentenced to 3 months imprisonment, permitted to serve conditionally in the community with 3 years' probation.
[30] At para. 16 of the decision the judge noted:
The damage to the complainant's sense of personal security was high. The expectation of privacy was extremely high. It seems to me that the principle focus of the sentence here should be denunciatory. It should also strive to deter this person and others from this type of offence. In this age of computers, iPhones, Facebook and Youtube, there is a very real risk that images like this could be disseminated around the world. The sentence should also reflect the concern of the court to ensure the protection and integrity of children.
[31] In R. v. Weinheimer, 2007 ABPC 349, [2007] A.J. No. 1459, the accused took pictures of victim using a urinal while he himself was in a toilet stall. After a search of the accused’s residence, police discovered photographs of 15 other men using the same urinal. The accused used the photographs for his sexual gratification. The Crown sought a period of incarceration, while defence argued for a suspended sentence and 18 months’ probation. The offender expressed genuine remorse and victim empathy. He had attended counselling and entered a guilty plea. He had no prior criminal record. The court imposed a suspended sentence and the accused was placed on probation for 2 years.
[32] Although the nature of the offence was similar in that Weinheimer took photos of people he knew, it can be distinguished as Mr. Jarvis was in a clear position of power over his numerous victims.
[33] In R. v. J.H.N., 2010 BCPC 155, [2010] B.C.J. No. 1450, the accused observed a 15 year old and 18 year old victim in their home undressed. He returned frequently to their residence to view them. There was a guilty plea and the offender had no prior criminal record. The offender had a psychological report and favourable pre-sentence report. The Victim Impact Statement denoted psychological effects on both victims and their parents. The offender received a suspended sentence and was placed on probation.
[34] In R. v. S.M., 2010 ONCJ 347, [2010] O.J. No. 3560, the accused secretly videotaped consensual sexual activity at a hotel room. Intimate details of all sexual activity, and all parts of the victim's body were closely captured by the camera. The Crown sought a conditional sentence of 30 days followed by 2 years' probation. The defence responded with an absolute discharge. The offender had no criminal record and was an upstanding member of society. The Victim Impact Statement revealed psychological trauma. The recordings required some planning. The offender received a suspended sentence and he was placed on probation.
[35] While S.M. was also in a position of trust with the victim, this case is dissimilar to that at bar. Mr. Jarvis recorded many more individuals, over a longer period of time and, for the most part, the victims were underage.
[36] In the case of R. v. Rocha, 2012 ABPC 24, [2012] A.J. No. 163, the accused, an employee at an airport, videotaped the adult complainant who was a passenger waiting for her luggage. The accused approached the complainant and took a photo up her skirt. The Crown suggested a 6 month conditional sentence order followed by 2 years' probation with the defence seeking a suspended sentence coupled with a period of probation. The accused entered a guilty plea and had sought counselling within days of arrest. This was not a sophisticated or cleverly thought out plan. It also did not continue over a long period of time, and there was only one victim. He received a suspended sentence and 15 months' probation.
[37] The case of R. v. McFarlane, 2018 MBCA 48, was an appeal of a combined sentence of 18 months imprisonment for convictions of voyeurism, distribution of an intimate images without consent and extortion. The accused surreptitiously video recorded the complainant (sister’s friend undressing and showering). Some five years later, he attempted to extort sexually explicit material/activity from complainant by threatening to disseminate intimate images of her via fake email accounts. The Crown sought a jail sentence of 15 to 18 months, while the defence proposed a non-custodial sentence. The sentencing judge imposed 18 months’ imprisonment (12 months for extortion, 6 months on distribution of an intimate image without consent, concurrently, and 6 months consecutive for voyeurism).
[38] The appellant had no prior criminal record, he was remorseful and had entered a guilty plea. He was assessed as a low risk for future offending by a forensic psychiatrist. There was a significant effect on complainant’s physical and mental health. The pre-sentence report indicated a moderate-high risk category for sexual offences. On appeal, the sentence was reduced to 15 months imprisonment that included 3 months for voyeurism (consecutive).
[39] In R. v. Aguas, 2015 ONSC 5732, [2015] O.J. No. 4739, the accused was found guilty of voyeurism and sexual assault on two different complainants. He committed both offences during his employ as a registered nurse, while each of the complainants was at the hospital seeking medical care. The police found one video and photos of the complainant’s breasts, buttocks, and vaginal area on his iPhone. There was another photo of the other complainant asleep with her breast exposed. The Crown sought a sentence of 18 months to 2 years less a day of imprisonment, followed by a lengthy period of probation. The defence sought a sentence of 6 months to 1 year imprisonment, followed by probation.
[40] The offender had no criminal record and expressed sincere remorse. He was a long-term professional who suffered financial consequences. He had undergone stringent pre-trial bail conditions. There was a significant emotional impact on both complainants expressed through their victim impact statements. The offender took advantage of vulnerable women (first complainant was victim of domestic violence and the second was at the hospital following a suicide attempt). The court determined that there was an abuse of trust. He was sentenced to 14 months' imprisonment (minus 5 months' credit for time served for both offences), sentenced to 9 months imprisonment for sexual assault, and 9 months for voyeurism concurrent, with 3 years' probation.
[41] The facts in Aguas are similar to the extent that the offender was in a position of trust with the victims. Neither had entered a guilty plea. While Aguas only had two victims within the scope of a few days, Mr. Jarvis engaged in these actions for over one year, with multiple underage victims.
[42] In R. v. Dogra, 2018 ABPC 140, [2018] A.J. No. 786, the complainant became ill after attending a party at accused's residence. She departed, accompanied by the accused who promised to take her home safely. He went to her home and into her bedroom where she was sexually assaulted. The accused videoed parts of the incident and photographed the complainant's genitals, breasts, and buttocks (after posing her for this purpose). The Crown sought a 4 year sentence on sexual assault, and a 1 year consecutive sentence for voyeurism. Defence sought a 2 year sentence on sexual assault and voyeurism with time served (84 days). The offender had support letters from people that knew him. He had lost his employment and was facing deportation.
[43] The judge found that the offences were planned. The accused was in a position of trust. The complainant was incapacitated and ill and unable to defend herself. The videos were recorded and saved so that they could be replayed. There was deliberate posing of the complainant in several degrading positions. She had sustained bruising to the tissues around the opening of her vagina and bleeding of the cervix. The offences took place in complainant's own home. There were significant and profound effects on complainant and severe psychological trauma. He was sentenced to 3 years' incarceration for the sexual assault and 1 year consecutive for voyeurism.
[44] In that case, it is clear that the thrust of the sentencing was focussed on the sexual assault conviction. No doubt, the facts are more egregious. Focusing solely on the voyeurism, Mr. Dogra intentionally posed the complainant in degrading positions while she was unable to defend herself.
[45] In R. v. Dekker, 2014 ABPC 61, [2014] A.J. No. 288, the accused surreptitiously videotaped about 80 people without their knowledge or consent. The acts were not sexually motivated, but rather motivated by adrenaline due to the fact that he could possibly get away with it. In this case, the Crown sought a conditional sentence of 12 months followed by a period of probation. The offender entered a guilty plea and was remorseful. He had no prior criminal record and co-operated with police. He had the strong support of family and community. The offence occurred over an extended period of time. The images were taken in a location where there was an exceptionally high expectation of privacy. There was a degree of planning. He was sentenced to a conditional sentence order of 9 months, followed by 2 years of probation.
[46] In R. v. W. (D.R.), 2016 ONCJ 171, the accused was seen taking pictures surreptitiously with cell phone of young woman in a store. Police acquired a warrant and found images of women taken without their consent with the accused masturbating. He broke into his sister-in-law's house and went into her underwear drawer. He was charged with 4 counts of voyeurism, a count of mischief, and one count of unlawfully being in a dwelling house. He had entered a guilty plea. He had a prior record for a similar offence of voyeurism that continued even after receiving treatment. There was significant emotional and traumatic impact on victims. The Crown sought a sentence of 12 to 16 months jail with 3 years’ probation.
[47] The offence involved a serious breach of trust. This was deliberate and planned conduct. The offender was daily chronic user of marijuana. He had a moderate risk for recidivism. He also had breached bail 3 times. With all of those aggravating factors, and for all of the charges, he was sentenced to 18 months imprisonment, minus 6 months credit for time served with probation for 3 years.
[48] While the voyeurism cases provided by the Crown lean towards non-custodial sentences, the defence also proffered several cases suggestive of the availability and imposition of a conditional sentence. Mr. Kerbel submits that R. v. B.H., [2017] O.J. No. 3021 (C.J) is most similar to the case at bar. A Vice Principal in a school in Brantford set up a camera in the staff washroom and taped users over a period of approximately 14 months. The offender pleaded guilty. The judge recognized that this was in part related to the difficult time the offender was having. The judge imposed a 16 month conditional sentence. It is noteworthy that all of the video or photo captures did not involve students.
[49] In R. v. Trinchi, 2016 ONSC 6585, [2016] O.J. No. 6719 (S.C.), the court imposed a suspended sentence with probation. The offender captured images from a video Skype chat with an intimate partner. He was charged with voyeurism and other offences related to allegedly posing as an ex-partner and distributing intimate images by email. Convicted only of voyeurism, the sentence related only to the capture of the images, not its dissemination.
[50] In R. v. Brandt, 2013 MBPC 39, [2013] M.J. No. 214, (Prov. Ct.) the offender was sentenced to a term of 18 months to be served conditionally. The offender had become obsessed with a subordinate and secretly watched her shower at work. In R. v. Bosomworth, 2015 BCPC 7, [2015] B.C.J. No. 546 (Prov. Ct.) a restaurant owner placed a small USB camera in the paper towel dispenser of the restaurant's unisex washroom. The judge remarked on the gravity of the extra-judicial consequences to the offender: loss of profession and community as a result of his offence. In this case, the offender received a suspended sentence with probation.
[51] Both counsel concede that there is no range for sentence that they can suggest to this Court for this offence and offender. It seems that the authorities provide for a wide range and variety of sentences, albeit principally non-custodial. It is not disputed that most, if not all, of the case law referred to by both counsel proffers the imposition of either a conditional or suspended sentence for this stand-alone offence. Where jail has been imposed, it was in conjunction with another serious offence, like sexual assault, extortion or possession of child pornography.
[52] I can only conclude that the range of penalty is very broad and the particular circumstances of this case must be carefully considered.
Analysis:
[53] The court is guided by the principles of sentencing as set out in ss. 718 to 718.2 of the Criminal Code.
[54] As directed by s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that reflect enumerated objectives. Those objectives, relevant to this case, are clearly, denunciation of the unlawful conduct, deterrence of other potential offenders and rehabilitation of Mr. Jarvis. It is also important to impose a sentence that promotes a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The circumstances of the offence and of the offender must be analyzed to identify the aggravating and the mitigating factors. I have not neglected to consider all of the other principles listed in ss. 718 and 718.2 of the Code including rehabilitation and other relevant factors in deciding what sentence to impose.
Aggravating Factors:
[55] In this case, there are aggravating factors. It is not disputed that Mr. Jarvis took advantage of the teacher-student relationship to commit the offence. It involved many female student victims. All but one of the victims were high school students that Mr. Jarvis regularly saw and taught. While it is true that no nudity was ever filmed, nonetheless, this offence can be classified as a breach of trust perpetrated on young female adolescents.
[56] Mr. Jarvis began using his pen camera to commit the offence from January 2010 to June 2011. The sheer prolonged length of time and volume of recordings that were obtained constitutes seriously aggravating factors. These files were digitized and they were able to be replayed for the offender's gratification. I do not have any evidence that these captures were distributed or otherwise disseminated.
[57] There were 27 student victims, ranging in age from 14 to 18 at the times of the offences. There was also one adult staff member who was victimized. Mr. Jarvis was in a position of power over his victims. The fact that the majority of Mr. Jarvis' victims were under 18 is a statutorily aggravating factor (s. 718.2(a)(ii.1)).
[58] While not a mitigating factor per se, Mr. Jarvis cannot be penalized for insisting on his right to a trial, as he is fully entitled to his day in court. However, he does not get the benefit of the mitigation of a guilty plea.
Mitigating Factors:
[59] Mr. Jarvis has no criminal antecedents. Apart from this conduct, he has otherwise led a pro-social life.
[60] Mr. Jarvis has the support and backing of his family members and friends. Several letters in support have been presented to the Court.
[61] For example, his friend, Christopher See writes: “Ryan is one of the most considerate and caring people I know; he always is reaching out to those on the fringes, celebrates others' birthdays by composing songs and creating personalized photo albums for them, and participates in charity events to raise money for children's hospitals. Ryan abusing his students felt completely out of character. My first question to him was, "So, did you do it? Ryan did not hesitate. ‘Yes’, he responded. It was wrong and it was stupid of me. My next question to him was, 'Why, Ryan? "Because I didn't think anyone would get hurt. It was stupid, wrong and I shouldn't have done it." … I made a choice to stand by my friend and support him through this, as he has supported me through rough times in my life...He has confessed, to me and others, that he fully understands he harmed the students entrusted to him, he's sorry he did, and he sincerely wishes he hadn't. And while the criminality of his actions has been the subject of debates in multiple courts of law, Ryan's repentance and acceptance of his wrongdoing has been steadfast.
[62] Mr. Jarvis’ common-law partner, Ms. Diane Fenn writes: “We quickly became very good friends as we had many interests in common...He participated in various charity ventures including annual fund-raising campaigns for cancer research, MS research, and emergency shelters, as well as specific functions for the church at which his mother is an auxiliary member, in addition to the regular charity work performed through the Masonic Lodge...It's not an exaggeration to say that Ryan's friendship helped me gain self-confidence and self-esteem … I heard about the charges and the nature of the situation while at work; the principal called me into the conference room to explain it and I broke down, completely. Everything about it was so utterly out of character for Ryan that I couldn't believe we were talking about the same person. I still have difficulty reconciling the person I know him to be - the kind, caring, supportive man - with the details of the offence; it's so contrary to his character. I do not deny the seriousness of the offence; I am well aware of the situation and the conviction. For me, it does not define him as a person... He has had significant difficulty finding employment. More than once, a job offer has been rescinded when someone in the workplace recognizes him from media coverage.”
[63] His mother, Debbi Jarvis writes: “Ryan also volunteered a lot for various charities and was an active participant in politics and in that regard he hoped to help make the world a better place to live in...Ryan was and is a very social being with lots of friends, who always found our home to be the home they wanted to come to, and those friends are very loyal and loving towards him...I guess what I am getting around to, is that this charge of voyeurism came out of left field and knocked us for a loop. This is something that is seriously out of character for Ryan, and it was a surprise for his brothers, their wives and all our friends and family. I would take this time to assure you Ryan has a good support system from all of the above mentioned, and is doing very well under the circumstances. I also want to point out, we are well aware of the impact this had in the families affected by this act, and we have thought about them many times and what hardship this had caused them, and I know Ryan feels this as well, and has expressed this same sentiment many times, and he is genuinely remorseful.”
[64] His father, Edward Jarvis composes: “Ryan is a person of many accomplishments from excelling in school culminating in a course of Law and Security at Fanshawe College and then his 4yr. Honours degree from Western and Teacher's College...Ryan has spent his life volunteering for several charities, raising money and giving freely of his time and talents...He has a large circle of friends and family, and enjoys doing many types of activities with them and us. He is an extremely thoughtful guy and is always willing to help those who need it... Ryan has a great rapport with all his family, brothers, sisters-in-laws and his nieces and nephew. He is a reliable and loving member of our family, therefore what has transpired caught us off guard and is totally out of character for Ryan.”
[65] Kyle MacKay writes: “Ryan and I are long-time friends and, for a few years, roommates...Ryan is always generous with lending his things, as well as his time, to his friends and family...In the years I've known Ryan I have found him to be kind, thoughtful, generous, funny, considerate, and a true friend.
[66] Andrew Jarvis, youngest brother of Ryan writes: “He has always been a law abiding citizen and a smart man. He is a good brother to me, and I have inherited many of his traits like his integrity, chivalry, generosity…I’m going to be blunt; growing up with Ryan, I always felt that he was weird and clumsy around women and his attraction to anime and celebrities etc. I think he needs to seek some kind of counselling for his sexual behaviours, but nothing urgent as his chance of recidivism is very low.
[67] Another mitigating factor stems from the fact that Mr. Jarvis admitted much of the evidence at trial through an Agreed Statement of Facts, without the necessity of calling the numerous complainants. The issue for trial was the legal interpretation of the Criminal Code section of voyeurism, as there was not much jurisprudence in the interpretation of that provision. The issue required consideration and analysis by this Court, the Ontario Court of Appeal and eventually, the Supreme Court of Canada.
[68] Mr. Jarvis has not been in any trouble while on bail terms for the past many years. He is a mature first time offender.
[69] Mr. Jarvis demonstrated some remorse as expressed to the author of the pre-sentence report, and to others. As mentioned, in his statement to the Court, he apologized for his actions.
[70] There is no doubt that this case has impacted Mr. Jarvis’ reputation in the community due to the ubiquitous coverage of the case by the media, interest groups, advocates, legal scholars and others. There are long term professional consequences as Mr. Jarvis has lost his job and had his teacher’s licence revoked.
[71] There is some evidence that Mr. Jarvis has some insight into his behaviours and is dealing with his underlying issues. As stated, commencing in the spring of 2019, he has sought the counselling services of Mr. Kushnier and has attended five sessions.
[72] While I have some very limited evidence about his prospects for rehabilitation it does appear to be positive. There is no cogent evidence about Mr. Jarvis’ likelihood or risk of re-offending.
[73] Thus, can the principles of sentencing be satisfied by the imposition of a conditional sentence as proposed by the defendant?
[74] In this case, a conditional sentence is statutory available. Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.
[75] Both parties concede that the nature of this offence demands denunciation and deterrence. It is conceded that the acts giving rise to the conviction were repeatedly committed on young adolescents in the sanctity of their school. Mr. Kerbel argues that the acts, while not to be condoned, are at the low end of sexual deviant behaviour. He submits that unlike other cases, there was no nudity involved and the offence was not committed in what are typically considered to be private venues. There is no evidence that the digital images have been distributed.
[76] Turning back to the case of F.G., I accept the comments of the judge at para. 28 of the decision:
The damage to the complainant's sense of personal security was high. The expectation of privacy was extremely high. It seems to me that the principle focus of the sentence here should be denunciatory. It should also strive to deter this person and others from this type of offence. In this age of computers, iPhones, Facebook and Youtube, there is a very real risk that images like this could be disseminated around the world. The sentence should also reflect the concern of the court to ensure the protection and integrity of children.
[77] As mentioned, s. 718.2 addresses the principles of totality, parity and the principle of restraint. Section 718.01 directs that when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the principles of denunciation and deterrence of such conduct. Section 718.2(a)(ii.1) recognizes that the abuse of a person under 18 is an aggravating factor, and s. 718.2(a)(iii) recognizes that abuse of a position of trust or authority in relation to the victim is also an aggravating factor. Mr. Jarvis falls under these provisions as he abused a position of trust or authority in relation to the victims, who were his students.
[78] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is given statutory recognition under s. 718.1. Due to the high number of victims in this case, and the length of time the offences continued, Mr. Jarvis has a high level of moral blameworthiness.
[79] There appears to be no suggestion of any danger to the public or recidivism at this time. While I accept that Mr. Jarvis has begun the process to gain insight into his behaviours with the five visits to Mr. Kushnier, I am not entirely convinced that he has fully understood the depth of his wrongful behaviour or of moral culpability that he needs to address, to the extent suggested by the defence. It seems to me that having waited until just prior to sentencing before approaching a specialist for counselling is somewhat self-serving. While I can appreciate Mr. Kerbel’s submission that there was some legal advice provided to his client about the timing of such counselling during the various appeal periods, I am persuaded that seeking timely counselling to address what has been framed as Mr. Jarvis’ admitted insight into some of his underlying behaviours giving rise to the acts in question, and any legal defence of an appeal are mutually exclusive.
[80] Indeed, there are many words to describe Mr. Jarvis’ conduct, despicable, demeaning, appalling, and as I opined in the trial decision, the acts committed were morally repugnant and professionally objectionable. If there was insight and a willingness to address these issues, those comments and Mr. Jarvis admission about his own behaviour to others ought to have at least triggered some impetus by him to seek treatment and counselling despite the original acquittal. My characterization of the acts does not change. In the event that I am overstating the issue, this particular aspect regarding insight into the offender’s behaviour does not form the principal reasons for rejecting the defence position.
[81] In my view, all of the aforementioned factors are an indication that general deterrence and denunciation are required at a high level. Not just because it is statutorily mandated on the facts of this case. Technology is everywhere. Cameras, cell phones and other recording devices can be placed surreptitiously in any location, or on any person. The main stream and social media is replete with video captures taken by citizens. It seems like everyone has a smart cell phone today. While this is not a case of a cell phone, in my view, this increases the need for sending a message to the general public that taking pictures of individuals in compromising positions, for example, women who might be wearing a top that is loose or showing cleavage is inappropriate. That is what Mr. Jarvis did, repeatedly and with guile. Therefore, in my view, this is one of those cases where general deterrence must actually play an enhanced and meaningful role in sentencing.
[82] While it is true that in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, Lamer C.J.C. stated at para. 22, that “a conditional sentence is a punitive sanction capable of achieving the objectives of denunciation and deterrence”. However, in this particular case, I am not persuaded that it can satisfy these principles even with a restrictive conditional sentence with longer durations imposed. This would not proportionally reflect the gravity of the offence and provide the necessary elements of denunciation and deterrence. “Denunciation and deterrence are particular pressing … this may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence”. Proulx at para. 114. See also R. v. R.A.R., 2000 SCC 8, [2001] 1 S.C.R. 163, at paras. 24-33.
[83] In order to encourage the principles of denunciation and deterrence for both Mr. Jarvis specifically, and other offenders who commit similar crimes, a conditional sentence will not be suitable given the high number of aggravating factors. In my opinion, this requires a sanction that cannot be attained by the imposition of a conditional sentence in order to meet the objective of proportionality. For greater certainty, a conditional sentence would fail to strike the right balance in emphasizing the paramount principles and it would fail to place the right weight on denunciation, specific deterrence, and most significantly, it fails to address adequately general deterrence. The significant denunciatory effect of jail is required. I find that it would be unfit and contrary to the public interest to impose a conditional sentence.
[84] The Crown attorney’s submissions with respect to imposing a traditional jail term in this case are entirely appropriate. Numerous female students have and will continue to experience emotional and psychological trauma from Mr. Jarvis despicable conduct. It is timely to send a deterrent message to this offender and to those who are like-minded in the use of technology with its omnipresent nature, when employed to invade one’s personal and bodily integrity in order to protect vulnerable persons, as in this case.
[85] However, that being said, I must respectfully disagree with the quantum being proposed by the Crown attorney. Mr. Perfetto submits that this Court ought to impose a higher sanction than what has ever been imposed in the past. He relies in part on the case of R. v. Lacasse, 2015 SCC 64, at para 58.
The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstratively unfit.
[86] I accept the proposition in Lacasse, which imbues much discretion to sentencing judges to consider an appropriate sentence provided that it is not demonstrably unfit. However, I am still constrained by the principles of parity, totality and proportionality in sentencing.
[87] It bears repeating that Mr. Perfetto readily concedes that what the Crown is seeking as a custodial term is precedent-setting. No reported cases have come close to imposing a jail term in the range sought by the Crown attorney strictly for an offence of voyeurism committed by a first-time offender.
[88] The harm inherent in this offence is intrusion of the victim’s privacy. While many courts consider this less serious than non-consensual touching, the acts caused severe distress, embarrassment and anxiety to many of the victims. Voyeurism offences that involved aggravating factors such as circulating images or placing on the internet, or showing it to others, may warrant custody as a starting point. As well, traditional custodial incarceration for crimes of voyeurism seem to be imposed where the offence is committed in conjunction with other serious offences, often rendered consecutive to the other more serious charge(s).
[89] Juxtaposed with these important considerations are the mitigating factors including family support, expressions of remorse with some weight to be attributed to the counselling and progress report provided by Mr. Kushnier. Overall, and with respect, the range of sentence of 12 to 18 months proposed by the Crown attorney is excessive for the offence and this particular offender.
[90] That is not to suggest that a jail term cannot ever be imposed for the stand-alone offence of voyeurism, especially in such egregious cases like the one before me. The fact that there was no nudity captured by Mr. Jarvis is not an essential element of s. 162 (1)(c), and does not detract from the breadth of the conduct. Indeed, times are changing. Privacy interests must be acknowledged and protected to the extent permitted by law. Courts must be mindful about the ever-evolving use of digital technology and its potential for exploitation and abuse. Such use in tandem with society’s intolerance and abhorrence for crimes perpetrated against vulnerable victims and especially those that impinge on the sexual integrity of women must be reflected when imposing a just and proper disposition.
Disposition:
[91] For all of the aforementioned reasons, Mr. Jarvis’ pervasive and repeated acts directed towards vulnerable, adolescent female students warrants serious consideration of the aggravating statutory provisions in the imposition of sentence.
[92] Mr. Jarvis is to provide a sample of his DNA pursuant to s. 487.051 of the Criminal Code. A forfeiture order pursuant to s.164.2(1) has been made.
[93] I conclude that a fit and appropriate sentence in this case is a term of imprisonment of six months in a Provincial Reformatory.
[94] This jail term will be followed by a period of probation for 12 months. The order will include the statutory provisions, as well as terms not to contact, communicate or associate directly or indirectly with all of the named victims, (a list to be provided); not to be within 100 metres of those named individuals; attend and actively participate in such counselling or rehabilitative treatment programs as may be recommended or directed by the probation officer and provide consents and progress reports if requested. A victim surcharge is imposed.
“Justice A. J. Goodman”
A.J. GOODMAN J.
Dated: August 27, 2019