In an era of omnipresent technology – and all the ways to exploit it – the courts have now begun to shape the legal and cultural landscape of image based abuse.
That trend will continue tomorrow when the Supreme Court of Canada releases its decision for R v Jarvis. The Court will determine the circumstances under which a person will be criminally liable for secretly photographing women and girls for their own sexual gratification. Specifically, the Court will decide whether Ryan Jarvis – a male high school teacher who used a camera pen to secretly film the cleavage of his female students – committed the crime of “voyeurism” under section 162(1) of the Criminal Code.
Yes, you read that correctly. The highest court in the land will decide whether it is perfectly legal to secretly film the cleavage of random girls. I mean, of course it is illegal? Well, the Ontario Superior Court and the Ontario Court of Appeal both held that what Mr. Jarvis’ actions didn’t constitute voyeurism.
So ya, we have some stuff to talk about, folks. And not just legal folks, but Canadians-who-care-about-humanity folks. Because this case addresses important questions regarding gender, power, technology, and privacy. Questions that have a significant impact on every Canadian.
From a feminist legal reform perspective, the main issue at play are:
i) The gender and power dynamics of sexualized recordings;
ii) Why taking recording someone is much worse than simply observing someone in real life; and
iii) Utilizing a contextual rather than location based privacy analysis when determining if a reasonable expectation of privacy exists.
Before I delve into it, I’ll just say that our justice system is an inherently ineffective mechanism for addressing sexual and gender based violence (SGBV). But Supreme Court rulings have significant impact on the Canadian legal and political landscape, so we still need to know our institutions stand on these issues.
Okay, here we go.
It’s about equality
I don’t think it is hard to figure out how power and gender play into voyeurism, especially in this case, where we have a male adult teacher secretly filming young girls in school.
As LEAF (Women’s Legal Action Fund) said, we are dealing with women’s and girl’s liberty, autonomy, and bodily and sexual integrity. Women and girls are disproportionately affected by sexual invasions and will be forced to constantly police themselves in public if the Court rules that bear the burden of protecting themselves from invasive images. Our society is not just if women and girls must accept that their bodily autonomy can be invaded by another person any time they are in public.
We are also dealing with young adults who are vulnerable to the power dynamic with their teachers. We must demand that teachers – who occupy positions of authority and trust – respect and safeguard their students’ autonomy and well-being. We expect teachers to protect our children when we send them to school every day, not exploit them.
To suggest that this type of behaviour is legal is to create the discriminatory legal presumption that women and girls have no protection of personhood in public life. To create such a narrow definition of voyeurism is, in essence, to make women in public become ‘fair game.’
If one considers the power and gender dynamics at play, it is very reasonable for young female students to expect that teachers will respect their privacy when they attend school. In other words, students (of all genders) have a reasonable expectation of privacy at school.
Isn’t it just like staring at someone?
Having someone stare at your cleavage is annoying, uncomfortable and unsettling. But, simply put, it’s a part of life. We can’t control people’s eyes in public.
Recording someone’s body, rather than simply looking at it, is very different. A recording is permanent – it will continue existing unless/until it is purposefully destroyed. A recording can be disseminated to an infinite number of viewers. A recording can be manipulated – as we have seen with the recent increase in deepfake cases. Once shared on the internet, a recording can never be put back into the proverbial box; a person will never be rid of this horrifying, dehumanizing experience. A recording gives the voyeur control over the image of someone’s body – they can do whatever they want to the video and use it for whatever purpose they please. Simply put, a recording disempowers the person filmed – they can no longer determine how and when they are viewed in a sexual way.
Addressing the fact that it is a recording is imperative, not just because of the heightened intrusion onto one’s personhood, but because today’s technologies – mini cameras, smart phones, drones – allow for deeply invasive access. Furthermore, social media and websites dedicated to sexual images allow these images/videos to be shared at rapid rates to countless people with the click of a button.
It’s not like staring at someone, unless staring at someone could be visually manipulated, shared with everyone on the planet, and never destroyed.
Location, location, location
Whether the videos were done for a sexual purpose; and
Whether the circumstances gave rise to a reasonable expectation of privacy.
ONCA found that the videos were made for a sexual purpose, but dismissed the appeal because the court found the filming did not occur in a location – school – which gave rise to a reasonable expectation of privacy.
Essentially, ONCA determined the girls had no reasonable expectation of privacy because they were in a school, which is a public space. The Court came to this conclusion by using a ‘location-based’ assessment of privacy. This means that secretly filming women in public places (schools, buses, parks, etc.) it is completely legal in the eyes of ONCA.
I think we can agree that this location-based approach to reasonable expectation of privacy is devoid of context and has harmful effects on everyone, especially women and girls who are so often the target of sexualized content.
The Supreme Court, I hope, will employ a more contextual, normative approach to its privacy analysis, considering the totality of the circumstances. Location is indeed relevant, but it shouldn’t be the sole factor. A person shouldn’t lose all their privacy rights when they step out of their house. As CIPPIC argued at ONCA, the Court should consider several other factors, including: what the accused was attempting to capture; efforts taken to conceal the video/picture was being taken; the relationship between the parties; and the norms of the place where the video/picture was taken.
The dissent by Justice Hushcroft in the ONCA decision took this contextual approach and had some great language on consent, power and privacy. Justice Hushcroft agreed with the majority that the videos were done for a sexual purpose, but disagreed that a reasonable expectation of privacy did not exist. He asserts that privacy is not a descriptive claim, but a normative one. We can’t just ask whether someone has a reasonable expectation of privacy, we need to be asking if someone should have a reasonable expectation of privacy based on circumstances as well as their interests and society’s interests.
Justice Hushcroft stated simply: should students expect that their personal and sexual integrity will be protected while at school? In answering this question, he wrote that the Court must consider: the requirement to attend school, access to school is controlled by school authorities, surveillance cameras do not zone in on student bodies; access to surveillance cameras for personal use is barred, and the school board had prohibited Jarvis from making those recordings.
It’s a big deal
Common sense dictates that teachers shouldn’t be legally allowed to secretly film their students’ cleavage. Every person deserves bodily autonomy and control over self-image.
Times are changing. Everyone has a smart phone and you can pick up a mini pen camera at the mall. Anyone can upload a video to YouTube. What was once a fringe issue, is central to Canadians’ right to be free from unwanted sexualized recordings.
The Supreme Court’s decision in R v Jarvis will impact everyone’s rights, especially girls and women, the LGBTQ community, and anyone targeted by racism and colonialism.
Let’s hope they make the right decision.