OTTAWA - A high-school teacher who used a pen camera to surreptitiously take videos of female students is guilty of voyeurism, the Supreme Court of Canada has ruled.
In a ground-breaking decision Thursday, the high court said the teenage students were entitled to a reasonable expectation they would not be secretly recorded by their instructor.
Teacher Ryan Jarvis was charged with voyeurism after discovery of more than two dozen videos on his pen, many of which focused on the chests and cleavage area of students at the London, Ont., school.
During 2010 and 2011, Jarvis made the recordings in different locations around the school, including in hallways, classrooms, the cafeteria, staff offices and outside the building.
The videos range from six seconds in length to just over two-and-a-half minutes, often involving a conversation between Jarvis and the student. In most, the camera is on the girl's face, but also focuses for a considerable amount of time on her chest area.
Jarvis was acquitted when the trial judge found that while the students had a reasonable expectation of privacy, it was not clear the videos were taken for a sexual purpose.
The Ontario Court of Appeal dismissed the Crown's challenge of the ruling, although for different reasons.
A majority of the appeal court concluded the videos were taken for a sexual purpose, noting at least five featured close-up, lengthy views of cleavage from angles both straight on and from above. However, the court said the students should not have an expectation of privacy in areas of the school where they congregate or where classes are taught.
One of the appeal court judges dissented, opening the door to a hearing before the Supreme Court to decide the privacy considerations in the case, as it was no longer in dispute that Jarvis made the recordings for a sexual reason. It marked the first time the high court had examined the Criminal Code offence of voyeurism, which took effect in 2005.
All nine judges of the high court agreed Jarvis should be found guilty. However, they provided two sets of reasons in coming to that unanimous conclusion.
In writing for a majority of the court, Chief Justice Richard Wagner pointed out that legislators created the new voyeurism offence due to concerns about the potential for rapidly evolving technology, such as tiny cameras, to be abused for the secret viewing or recording of people for sexual purposes, and in ways that involve a serious breach of privacy.
He noted that the students were unaware they were being recorded, and a school board policy in effect at the time prohibited Jarvis from making such videos.
Wagner said a student attending class, walking down a school hallway or speaking to her teacher certainly expects she will not be singled out by the instructor and made the subject of a secretive, minutes-long recording focusing on her body.
"The explicit focus of the videos on the bodies of the students recorded, including their breasts, leaves me in no doubt that the videos were made in violation of the students' reasonable expectations of privacy."
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