Voyeurism ac­quit­tal up­held

On­tario teacher se­cretly videoed stu­dents’ breasts

Penticton Herald - - CANADA -

TORONTO — A high school teacher who used a cam­era pen to se­cretly video fe­male stu­dents’ chest ar­eas did so for sex­ual pur­poses, but his ac­quit­tal on voyeurism charges will nev­er­the­less stand, On­tario’s top court ruled in a split de­ci­sion on Thurs­day.

In dis­miss­ing a pros­e­cu­tion chal­lenge to a lower court ver­dict, the Court of Ap­peal found the stu­dents had no rea­son­able ex­pec­ta­tion of pri­vacy — a key el­e­ment of the of­fence of voyeurism.

Po­lice in Lon­don, Ont., charged the English teacher, Ryan Jarvis, over se­cret record­ings he made in 2010 and 2011 of the stu­dents while he was chat­ting with them. The im­ages, cap­tured in var­i­ous places in and around the school and last­ing from sec­onds to a few min­utes, in­volved 27 fe­male stu­dents aged 14 to 18.

An­other teacher spot­ted what was hap­pen­ing and alerted the prin­ci­pal, who ob­served the same con­duct and called in the po­lice.

Key to the voyeurism charge was that sev­eral of the videos, ad­mit­ted as ev­i­dence at trial, fo­cused on the teens’ chest ar­eas.

In Novem­ber 2015, Su­pe­rior Court Jus­tice An­drew Good­man found Jarvis not guilty, de­spite de­cid­ing his be­hav­iour had been “mo­rally re­pug­nant and pro­fes­sion­ally ob­jec­tion­able.” While Good­man ruled the stu­dents had a rea­son­able ex­pec­ta­tion of pri­vacy, he found the videos were not sex­u­ally mo­ti­vated.

Among other things, Good­man said, Jarvis had no other porno­graphic ma­te­rial, some­times filmed faces, and none of the im­ages showed nu­dity or sex­ual ac­tiv­ity. The judge also noted that the im­ages showed what could be “read­ily seen” by any­one.

“While a con­clu­sion that the ac­cused was pho­tograph­ing the stu­dents’ cleav­age for a sex­ual pur­pose is most likely,” Good­man found, “there may be other in­fer­ences to be drawn.”

The Crown ap­pealed, ar­gu­ing it should have been a no-brainer that Jarvis, who did not tes­tify, had been sex­u­ally mo­ti­vated: The sub­jects were fe­males, and the cam­era was de­lib­er­ately pointed down­ward at their breasts.

In com­ing to op­po­site con­clu­sions than Good­man did — but still up­hold­ing the ac­quit­tal — the ma­jor­ity of the Ap­peal Court panel that heard the case re­jected his anal­y­sis of the sex­ual as­pect, which leaned on par­al­lels to child pornog­ra­phy. Good­man was wrong, the higher court ruled, to con­sider the lack of nu­dity as negat­ing the sex­ual pur­poses Jarvis had.

The judge also failed to iden­tify what other pur­poses the teacher might have had, the higher court said.

“This was an over­whelm­ing case of videos fo­cused on young women’s breasts and cleav­age,” Jus­tice Kathryn Feld­man wrote on be­half of her­self and Jus­tice David Watt.

How­ever, in look­ing at the sec­ond el­e­ment of the of­fence, Feld­man and Watt dis­agreed with Good­man that the teens had a rea­son­able ex­pec­ta­tion of pri­vacy at school even though they could be recorded, for ex­am­ple, by se­cu­rity cam­eras.

In com­ing to that con­clu­sion, the ma­jor­ity noted that we live in an open so­ci­ety “where vis­ual in­ter­ac­tion is part of ev­ery­day life and is val­ued” and that while school should be a pro­tected and safe en­vi­ron­ment, stu­dents know they can be ob­served in places where they gather.

“If a per­son is in a pub­lic place, fully clothed and not en­gaged in toi­let­ing or sex­ual ac­tiv­ity, they will nor­mally not be in cir­cum­stances that give rise to a rea­son­able ex­pec­ta­tion of pri­vacy,” the court ruled.

In a dis­sent­ing opin­ion, Jus­tice Grant Huscroft agreed the videos were for a sex­ual pur­pose but re­jected the pri­vacy con­clu­sion.

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