By Suzie Dunn

Do girls have a reasonable expectation of privacy not to have unwanted pictures of their breasts taken while they are in school? This was the question that was being asked at the recent Supreme Court of Canada case R v Jarvis. The eQuality Project believes that they do.

This case involves a high school teacher who surreptitiously recorded multiple video clips of the chest and cleavage area several high school girls and one female teacher using a camera hidden in a pen. Charged with voyeurism, the accused, Ryan Jarvis, was acquitted at the trial level, where Justice Goodman found that the girls did have a reasonable expectation of privacy in the circumstances, but that he could not conclude beyond a reasonable doubt that the images were produced for a sexual purpose. For more details on the trial level decision and why the decision was problematic, see our previous blog post on this case here. At the Court of Appeal, Jarvis was again acquitted, but for different reasons this time. Justices Feldman and Watt found that although the images were made for a sexual purpose, the court held that the girls did not have a reasonable expectation of privacy, in part because they were recorded in a public section of the school where they knew they were being recorded, albeit by the school’s security cameras not hidden cameras.

The decision has been highly criticized by advocates for privacy and equality rights, several of whom intervened at the appeal to the Supreme Court of Canada.

The eQuality Project teamed up with the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) to intervene in this case. CIPPIC is Canada’s sole public interest technology law clinic and regularly intervenes at the Supreme Courts on issues related to privacy and technology. It is situated at the University of Ottawa’s Faculty of Law. CIPPIC has advocated for Canadian privacy rights in cases such as R v Marakah and AB v Bragg Communications and is a long standing advocate for women’s and girls’ privacy rights in the digital age. The eQuality Project’s Jane Bailey represented CIPPIC as counsel at the Supreme Court of Canada, along with CIPPIC lawyer David Fewer, and The eQuality Project’s research assistant Suzie Dunn and CIPPIC’s articling student Maleeha Akhtar provided support for the intervention. You can watch Bailey’s oral argument at the Supreme Court of Canada on webcast here (starting at 57:00) and read CIPPIC’s factum here.

In CIPPIC’s intervention, we argued that the reasonable expectation of privacy should be informed by Charter values, and be equality enhancing, normative, contextual, and non-risk-based. Privacy interests should not be divided by being protected when one is in a private place or alone, and not protected when one is in public place or observable by others, but instead requires a contextual analysis that considers a variety of factors. A woman or girls’ privacy interests should not be waived for merely appearing in public or within the range of modern recording devices, nor for appearing in public with clothing that exposes some skin.

The core of our argument was that the court should consider two governing principles when developing a framework to analyze the circumstances giving rise to a reasonable expectation of privacy: the impact on the complainants’ ability to assert control over their sexual and bodily integrity, and the impact on equality-seeking group members. We further argued that three additional factors should be considered by the court included: the relationship between the accused and the complainant; the norms, rules and/or regulations related to the recording (i.e. the appropriate conduct in the place where the recording occurred); and the actions of the accused.

In the case of Jarvis, the girls and woman in the recordings had their bodily and sexual integrity violated by Jarvis. He created permanent images of his victims’ breasts that he could take home and view multiple times and examine closely for his own sexual purposes, resulting in the perpetual re-victimization of his students and colleague. This violation seriously impacted their equality rights. If girls and women do not have a reasonable expectation of privacy in these circumstances, women and girls who are disproportionately affected by voyeurism will know that their teachers and colleague can surreptitiously take sexualized images of them without criminal consequence. This poisons the school environment and can make women and girls feel sexually targeted while working or studying, thus making them feel unwelcome and uncomfortable in school. With the relative ease that images can be distributed in the modern era, they may have legitimate fears that the images will be further distributed to presented out of context, leading to greater impacts on their lives.

Although we believe that all women and girls have a reasonable expectation of privacy not to have surreptitious recordings made of their breasts, the power imbalance between the teacher and student enhances that expectation. Teachers are in a position of trust and students should be able to expect that their privacy rights will be respected in the school context and that teachers will not be permitted abuse their access to students in order to take surreptitious sexualized images of them. To suggest otherwise, as argued by Bailey in CIPPIC’s oral submissions, sends “an equality undermining message, that is, that girls’ and young women’s appearance in public such as schools, can be interpreted as licence for others, including their teachers, to sexually commodify them against their will.” In the school environment, norms and legislative impositions dictate that teachers will not collect or use students’ personal information outside of strict guidelines and will not sexually abuse their students. Jarvis breached both of these norms and regulations by collecting sexualized photos of his students. The fact that he took the images surreptitiously further points to the existence of privacy expectation in the context he was taking the images in. All of these factors suggest that girls do have a reasonable expectation of privacy not to have surreptitious images of their breasts taken while in school and that Jarvis’ behaviour is criminal.

We presented this argument to the Supreme Court on April 20, 2018. The Court has reserved judgement and will release their decision at a later date.

For many people, including ourselves, it seems surprising this is an argument we had to make in 2018. Women and girls deserve to be protected from this form of technology facilitated sexual violence and this decision will determine if they can rely on the criminal law to enforce their rights.