Voyeurs must be stopped
The Supreme Court of Canada tackled a particularly pernicious modern-day privacy issue last week when it ruled that a teacher was guilty of voyeurism for secretly filming female students’ breast areas with a pen camera.
Such a creepy activity, involving a person in a position of trust targeting teen girls, may have sounded like a slam dunk for the prosecution. But it wasn’t.
And that alone should sound an alarm that privacy rights need to be strengthened by courts and legislators alike as new surveillance technologies, such as spy cameras, drones and GPS tracking apps, come onto the market.
After all, the teacher in question, Ryan Jarvis of London, Ont., had been acquitted twice under the 2005 law that criminalizes voyeurism.
In the first instance, a trial judge found that Jarvis had violated the students’ privacy but wasn’t satisfied he did it for sexual purposes. In the second, the Ontario Court of Appeal found that Jarvis had acted with sexual intent, but that the students had no reasonable expectation of privacy at a school.
That might have been the end of the case — this was the first one to be tried under the 2005 law — were it not for the fact that one of the appeal judges had dissented, giving the prosecution an opportunity to go to the top court.
Now the Supreme Court has given judges across Canada a clear guiding principle: A person doesn’t lose his or her right to privacy the minute they step outside their front door.
Indeed, writing for the majority, Chief Justice Richard Wagner found that privacy is the “concept of freedom from unwanted scrutiny, intrusion or attention,” whether it occurs in a school or on a public street.
And the court alerted trial judges that privacy concerns are raised whether voyeurs are using a cellphone to capture so-called “upskirt” images of women’s genitals or underwear, or drones to photograph sun bathers at public pools, or are surreptitiously video-recording a woman breastfeeding in a coffee shop.
In other words, while technology might make it easier to violate someone’s privacy, that doesn’t mean a person’s body is open fodder for someone’s sexual gratification.
That is especially important in this age of technology when sexual voyeurs can review photographs and videos in the privacy of their home or upload them to what are known as “creepshot” websites, where thousands of others may also view them.
Still, this decision and other cases arising around the world in this area underscore the fact that this is an area where legislators must be vigilant.
For example, the judges did not address the fact that studies have found voyeurism is predominantly perpetuated by men against women and girls.
As such, should it be considered gender-based violence and involve harsher punishment?
Legislators may also want to look at the issues raised by this case to ensure there are no loopholes that would allow other voyeurs to get away with their crimes.
For example, though the United Kingdom had a law on the books specifically stating that “upskirting” was a crime of voyeurism under its Sexual Offences Act, police there declined to prosecute a man accused of doing exactly that. Why? They deemed the shots not to be sexual because the victim was wearing underwear.
To ensure no one evades the intent of the law, Parliament had to pass a separate law specifically banning upskirting.
While the Supreme Court of Canada’s decision will go a long way toward protecting the privacy and sexual integrity of Canadians, the Jarvis case sounds an alarm that must be heeded.
First, MPs must ensure that Canada’s 14-year-old voyeurism law will pass the test of time by anticipating possible new legal challenges to it and technological advances that should be covered by it. And they should study what other laws must be strengthened or put in place to protect Canadians’ privacy in this digital age.
The Jarvis case shows that nothing can be left to chance.