Teacher convicted of voyeurism for covert use of pen camera
“In our increasingly digitally connected world, gender-based tech-facilitated sexual violence – like voyeurism — raises important equality issues.” — Jane Bailey, law professor, University of Ottawa
The Supreme Court of Canada delivered a decision on Valentine’s Day that was sweeter than any box of chocolates.
That is, if you care about privacy rights.
It ruled that a London, Ont. teacher, Ryan Jarvis, did indeed commit voyeurism when he used a pen camera to surreptitiously capture video of teenage female students’ cleavage and clothed breasts — a huge breach of trust, let alone of personal privacy.
“It’s a good day. A hopeful day,” University of Ottawa law professor David Fewer said Tuesday, after hearing the verdict.
He’s the director of theCIPPIC — the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, which was an intervenor in the case.
Fewer (the first mainland-born child in a family of transplanted Newfoundlanders) specializes, along with his colleague Jane Bailey, in how technology affects and can impede upon privacy rights.
The case considered by the Supreme Court, R vs. Jarvis, was a key test of the Canadian Criminal Code, which added voyeurism as an offence in 2005 in recognition of technology’s increasing powers of intrusion.
Expect privacy and technology to clash more and more in the future, Fewer warns.
“I think we’re going to see more of these kinds of cases,” he told me in a phone interview. “When voyeurism was included in the Criminal Code, it could’ve been focused exclusively on sexual activity, peeping Toms… but it was grounded in privacy as an essential right in a free and democratic society.”
I wrote about R vs. Jarvis in April 2018 (“Voyeurism case worth watching”). At the crux of the matter was whether Jarvis had captured the video for a sexual purpose and whether the students had a reasonable expectation of privacy in a school where security cameras were a fixture.
In 2015, a Superior Court of Ontario judge said it wasn’t completely clear that Jarvis had acted out of prurience, and he was acquitted. The case was appealed, but the appellate court said the students couldn’t really expect privacy in a school setting, though it found the teacher’s actions had been sexually motivated.
And that’s how the case made its way to the Supreme Court of Canada and was seen as being of crucial importance to privacy advocates.
Because if you look beyond the moral repugnance of a teacher covertly filming intrusive videos of teenage students — for who knows what purpose — there is the larger issue of the prevalence of technology and the increasing ease with which personal autonomy can be breached.
As the Supreme Court justices noted — among them Justice Malcolm Rowe from Newfoundland and Labrador: “The offence of voyeurism is an extension of the criminal law to protect well-established interests of privacy, autonomy and sexual integrity in light of threats posed by new technologies that encroach upon them. … The surreptitiousness of the observation or recording improperly removes the individual’s ability to maintain control over how they are observed, and, because of its permanence, a recording compounds the denial of the subject’s autonomy by giving the voyeur repeated access to the observations.”
David Fewer hopes the ruling achieves two main objectives. One, that it helps law enforcement and the justice system defend and uphold the privacy rights of women and girls, who are most often the victims of voyeurism.
And two, “That it really sends a signal about the permissible uses of technology. Everyone has a video camera in their pocket… that can be used in ways that fundamentally undermine (privacy rights),” he said.
“It’s like that old ‘Spider-Man’ rubric, ‘With great power comes great responsibility.’ It’s one thing for someone to see you. It’s something else for someone to capture your image and use it in a different context.”
The bottom line? If you see and record someone without their consent in a way that invades their personal autonomy? Chances are, they’ll see you in court
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