Victims’ voices missing from hearing of spy-pen case

Privacy rights of high school students were the issues at stake in a Supreme Court of Canada (SCC) voyeurism case that dealt with a teacher who secretly used a spy pen to record the breasts and cleavages of female students at school.

As a former Crown counsel who prosecuted this case in the early stages, I also attended the SCC hearing.

My interest in privacy and its impact on sexual integrity and equality drew me to the hearing, but the experience of attending had an unexpected outcome. I walked away with the realization that one of the people most deeply affected by this crime was ignored in the legal proceeding.

The interpretation of the term “reasonable expectation of privacy” was central to the court’s legal analysis and ultimate finding.

Was it reasonable for female high school students to expect not to have their intimate body parts, like breasts, secretly filmed by their teacher?

Or, on the other hand, was the public nature of a high school reason enough to expect that recordings of anything by anyone — including their teacher — could be made? The guilt or innocence of Ryan Jarvis, the teacher who made the recordings, hinged on the answers to those questions.

Privacy rights are an important topic, especially when it comes to women’s sexual integrity. Consequently, a total of seven parties in addition to the Crown and the respondent were granted intervener status.

After the hearing ended something unexpected happened.

While I was standing with some of the other lawyers in the court’s foyer, a young woman approached us to thank the participating lawyers. She explained she was one of the students whose image had been recorded by her teacher, Mr. Jarvis.

It was a moment that took our breath away. The holder of the privacy rights in issue was standing in front of us. We didn’t even know she had been in the courtroom. She told us she had been following the case and had travelled from London, Ont., to Ottawa to watch the hearing. She was emotional and it was apparent her teacher’s conduct had affected her deeply. The harm done by the invasion of her privacy continued to influence her life.

The unfairness of the situation was striking. The court never heard the view of the students whose privacy had been violated. The students had no voice because the criminal justice system does not recognize victims as parties to the case; they are considered witnesses only. The appeal process allows perspectives from outside interest groups, but not the perspective of the victims themselves! The young woman who attended the Supreme Court agreed to meet me and told me that initial acquittal of her former teacher left her with the impression the justice system did not care about girls her age.

It sent a message to her that they were not worthy of having rights. She wished that she had been given the opportunity to tell the court how the voyeuristic images taken by her teacher made her feel; that it was a violation with lasting effects that haunt her to this day.

She also expressed how difficult it was to have no connection with the lawyers representing her rights and that even being able to thank them was extremely important to her. It was only because she attended the hearing on her own initiative that she had that opportunity to approach them.

There is something wrong when the criminal justice system fails to allow victims the opportunity to advocate for their own rights. This is particularly true when doing so need not detract from the rights of the accused.

Denying victims a platform to express their views on issues relevant to their personal rights, such as their privacy, has the impact of perpetuating the inequality and powerlessness that gave rise to their victimization in the first place. Victims need to be empowered.

It is no coincidence that only 1-in-20 victims of sexual violence in Canada report it to the police. Participating in a legal system that has no mechanism for listening to victims’ views is not very inviting.

In my view, providing genuine access to justice for victims requires Canadian courts to hear their voices.