Is it Illegal For A Teacher To Secretly Film Their Students’ Cleavage? Posted onFebruary 26, 2019June 16, 2020/ John P. Schuman and Katelyn Bell Most, if not all, of us can likely agree that it is wrong to film someone without their consent. We can also probably agree that it is even more wrong when the filming is sexual in nature. Take for example someone filming you inside your condo while changing and/or focusing their camera in on your private parts. Those same people are probably also in agreement that when it is a teacher filming one of his/her students at school, it is even more wrong. So hypothetically speaking, if a teacher were to film his students and more specifically, his female students’ chests, without their knowledge, this would be very wrong and that teacher should be sanctioned. Seems pretty cut and dry, right? Wrong. In late 2010, Ryan Jarvis, a then high school teacher in London, Ontario, was caught secretly filming the chests of his female students with a camera pen. Jarvis filmed over 25 of his female students, all of whom were between the ages of 14 and 18 and all of whom had no idea they were being filmed. Jarvis was charged with voyeurism under section 167(1) of Canada’s Criminal Code. Section 167(1) reads: 162 (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if (a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity; (b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or (c) the observation or recording is done for a sexual purpose. At trial, Jarvis was acquitted of his charges. According to the trial judge, there was no evidence that Jarvis filmed the students for sexual purposes. On appeal at the Court of Appeal for Ontario, the panel found there to be clear sexual intent but the court upheld the acquittal on the basis of the students having “no reasonable expectation of privacy while at school”. So although it seems absurd that something so inherently wrong went all the way to Canada’s top Court to decide, it did. The Supreme Court of Canada was tasked with determining whether the students recorded by Jarvis were in circumstances that gave rise to a “reasonable expectation of privacy.” Jarvis argued that because the students were at school, where there were several other various surveillance cameras, such a reasonable expectation did not exist. The Supreme Court released their decision yesterday and the court disagreed with Jarvis’ argument and instead advanced a position held by most of the Canadian public: girls (and boys) should be able to go to school without having to worry about whether they are being secretly recorded, especially by someone in a position of trust, such as a teacher. However, although all nine Supreme Court judges agreed that Jarvis was guilty of voyeurism, the Justices were split on the legalities of the case, thereby demonstrating its complexity and the fact that this was not in fact an “open-and-shut case,” despite many Canadians having felt so. Ultimately, the Supreme Court’s decision has set clearer (and more expansive) guidelines around what a reasonable expectation of privacy means when in public spaces in the context of voyeurism. The court considered the example of a drone taking high-resolution photographs of unsuspecting sunbathers at a public swimming pool and noted that this too would raise similar privacy concerns to Jarvis’ case. Not surprisingly, Jarvis’ lawyers feel that the Supreme Court has cast the net of what constitutes a “reasonable expectation of privacy” too wide, but legal scholars, Ontario’s Information and Privacy Commissioner and women’s rights group alike all consider the decision the “right” one in the face of something that was so obviously wrong. The best way to protect yourself and your children is keep abreast of laws pertaining to education in Ontario. Additionally, it is always recommended that you seek help from an highly experienced legal professional such as John Schuman of Devry Smith Frank LLP who can be contacted at: john.schuman@devrylaw.ca, alternatively, 416-446-5869. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” Authors John P. Schuman 416-446-5080 416-446-5080 john.schuman@devrylaw.ca Katelyn Bell 416-446-5837 416-446-5837 katelyn.bell@devrylaw.ca Related Posts Posted onSeptember 17, 2020January 12, 2021/ Katelyn Bell Back To School Amid Covid-19? The Ontario Superior Court of Justice (ONSC) has recently, and in numerous instances, been called upon to decide the question as to whether children should be sent back to school amid the current Covid-19 pandemic. According to the Guide to reopening Ontario’s schools issued by the Ministry of Education, parents can choose between online schooling [...] Read more Posted onJune 18, 2020September 29, 2020/ Katelyn Bell DSF Lawyer Gets Damages For a 3-Year-Old Subjected to Harsh and Degrading Treatment at a Private School DSF’s education lawyer Katelyn Bell successfully defended the parents of a three-year-old student against a claim for unpaid tuition. The pupil’s parents were instead awarded $2,000 in damages against the school. The Plaintiffs own a private Montessori school which has what they claim to be a “strict uniform policy” for all enrolled students. The pupil [...] Read more Posted onJune 25, 2019July 5, 2023/ John P. Schuman My child has been suspended from school. Do I have the right to appeal this decision? In Canada, a child’s right to receive an education is an important one. As a result, children both in private and publicly funded schools are entitled to have any allegations put forth against them, fairly and impartially investigated. Additionally, an appeal process whereby the principal’s decision to expel or suspend a student for more than one day should form part of the process – particularly in publicly funded schools [...] Read more Posted onMarch 6, 2019June 14, 2020/ John P. Schuman What Does The Court Decision On the Repeal Of The Sexual Education Curriculum Mean? On February 28, 2019, the Ontario Divisional Court released its decision on the constitutional challenge to the provinces repeal of the 2015 Sexual Education Curriculum brought by the English Public Teachers Union and the Canadian Civil Liberties Association and others. While the Court dismissed the challenge, the decision does not prohibit teachers from teaching the 2015 Sexual [...] Read more Posted onJanuary 3, 2018July 5, 2023/ John P. Schuman Public Schools Cannot Just “Kick Kids Out” – They Must Have A Full Expulsion Hearing It may seem obvious, but School Principals cannot expel students without actually expelling them. In Ontario, allowing children access to a publicly funded education is a fundamental value. Children should not be deprived of that education, except in extreme circumstances. To deprive a child of the ability to attend school, the principal and the Board [...] Read more