R v Jarvis: What’s a guy got to do to get a voyeurism conviction around here?

M Djurdjevic - law student

Jan 6, 2020

5 min read

Updated: Oct 25

Author: M Djurdjevic

Often, reading legal decisions and following court proceedings can border on the tedious, even in the “dramatic” field of criminal law. Many cases hinge on minute details in the evidence, or precise interpretations of dryly worded statutes. The facts are complicated, convoluted, or depressing; in the end, you mostly feel tired and sorry for everyone involved.

Some cases, however, proceed in such bewildering fashion that they leave you questioning the integrity of the legal system entirely.

I am speaking, in this instance, of R v Jarvis, a Supreme Court case from earlier this year that reads not unlike a script for a weaker episode of Law & Order. [1] The accused was an English teacher at a high school, who had been using a camera concealed inside a pen to make secret recordings of female students while they were engaged in daily activities in common areas of the school. The content of the videos apparently “focused on the faces, upper bodies and breasts of female students”, who were not aware that they were being recorded by Mr. Jarvis. Not only did the students not consent to this recording, such recording was explicitly prohibited by school board policy at the time.[2]

If your skin isn’t crawling yet, take a moment to consider the procedural history. Mr. Jarvis was charged with voyeurism under s. 162(1) of the Criminal Code[3]– a two-part offence. It’s committed where a person (1) surreptitiously observes or makes a visual recording of another person who is in circumstances that give rise to a reasonable expectation of privacy, if (2) the observation or recording is done for a sexual purpose. At trial, Mr. Jarvis admitted he made the video recordings – no argument there. The questions were whether the students had a reasonable expectation of privacy, and whether the accused had made the videos for a sexual purpose.

The trial judge found that yes, of course the students had a reasonable expectation of privacy, but was somehow unconvinced that the recordings had been made for a sexual purpose. The Court of Appeal, on the other hand, unanimously concluded that the recordings had been made for a sexual purpose, but found that the students were not in circumstances that give rise to a reasonable expectation of privacy. In other words, both courts acquitted Mr. Jarvis – just for opposite reasons.

The Crown appealed to the Supreme Court on the issue of whether the students being recorded were “in circumstances that give rise to a reasonable expectation of privacy” – but we’ll deal with the Supreme Court decision in a moment. What needs unpacking here is how the trial judge and Court of Appeal could both have come to completely different conclusions based on the facts of the case, and how – how? – they could have nevertheless both acquitted the accused.

Starting with the decision at trial, it is mind boggling that the judge felt unconvinced that the videos had been made for a sexual purpose. In the case at hand, a teacher had been making secret recordings in high definition of specific female students, focusing on their upper bodies, and, apparently, very much on their breasts. I have difficulty imagining some other purpose for which these recordings might have been made. Passive scientific interest? An objective artist’s eye for young, female beauty? Was Mr. Jarvis perhaps putting together an instructional video on mammography?

There are of course compelling reasons under the Canadian Charter of Rights and Freedoms to impose a high burden of evidence of “beyond a reasonable doubt”, and the desire to see creeps like Mr. Jarvis convicted shouldn’t overrule his right to a fair trial. That being said, the trial judge’s decision in this case defies belief. What must a recording contain, exactly, to be for a sexual purpose? Must it be explicitly pornographic in nature? Must it have been disseminated to others in an explicitly sexual context? Must the police have knocked the accused’s door down in the exact right moment to catch him in a masturbatory act?

The Court of Appeal did not share the trial judge’s apparent indecision about the nature of the recordings at hand – a majority found that they were indeed sexual in nature. Given this finding, how could they not agree that high school students – some of whom, it definitely bears noting, were minors at the time – have a reasonable expectation of privacy with regards to having their breasts recorded for a teacher’s sexual purposes? Especially at a school where there was an explicit policy forbidding exactly this sort of surreptitious recording?

The Supreme Court appears to have shared, if not quite my vocal feelings of shock and dismay, at least my opinion that Mr. Jarvis clearly violated s. 162(1) of the Code. It’s a relief to know that somewhere down the procedural line, he was eventually convicted of voyeurism, after the Court found that the students were in circumstances that give rise to a reasonable expectation of privacy. As Wagner C.J. puts it in the decision: “a person does not lose all expectations of privacy, as that concept is ordinarily understood, simply because she is in a place where she knows she can be observed by others or from which she cannot exclude others.”[4] But while it’s comforting to know that the Court chose to take this nuanced approach to the question of privacy, it’s devastating that the case had to go so far at all.

While the case of Mr. Jarvis is, in one sense, just a specific instance of a very creepy man betraying his duty as a teacher and sexually exploiting his students, it ties into larger privacy questions that should concern everyone. Wagner C.J. summarizes these concerns well:

“The development of new recording technology, and its increasing availability on the retail market, may mean that individuals come to fear that they are being recorded by hidden cameras in situations where such recording was previously impossible; however, it does not follow that individuals thereby waive expectations of privacy.”[5]

Courts are meant to be arbiters of justice – they’re meant to enforce the law. Now more than ever, it’s imperative that courts step in to ensure that privacy rights be respected. Otherwise, the attitudes expressed by the trial judge and Court of Appeal lead to decisions like that of the Massachusetts Supreme Judicial Court, which found in 2014 that a man taking photos up women’s skirts on the subway was not guilty under state law.[6] It’s time for courts to follow the Supreme Court’s lead in upholding personal privacy – in other words, if it walks like a voyeur, and it talks like a voyeur, they should convict the man of voyeurism.