An Ontario high school teacher who used a camera pen to take photos of female students has been convicted by Canada's highest court.
In 2015, Ryan Jarvis was originally acquitted of the criminal offence of voyerism in London, Ontario, when a judge found that the images of the students cleavage and chests weren't taken for a sexual purpose.
The Ontario Court of Appeal later upheld that ruling, with one judge dissenting.
But this morning, the Supreme Court of Canada concluded that "visual recordings of students were not made in circumstances that give rise to reasonable expectation of privacy", as required under the Criminal Code of Canada.
"The students were not aware that they were being recorded by the accused, nor did they consent to the recordings," six of the nine justices concluded in their decision. "A school board policy in effect at the relevant time prohibited the type of conduct engaged in by the accused."
The ruling declared that privacy is "not an all-or-nothing concept, and being in a public of semi-public space does not automatically negate all expectations of privacy with respect to observation or recording".
"Rather, whether observation or recording would generally be regarded as an invasion of privacy depends on a variety of factors, which may include a person’s location, the form of the alleged invasion of privacy, the nature of the observation or recording, the activity in which a person is engaged when observed or recorded and the part of a person’s body that is the focus of the recording," the judgment stated.
Three other justices—Suzanne Côté, Russell Brown, and Malcolm Rowe—agreed that the students "were in circumstances that give rise to a reasonable expectation of privacy under the voyeurism section in the Criminal Code".
But they disagreed that a multifactored test should be adopted to determine this reasonable expectation.
"The offence of voyeurism is an extension of the criminal law to protect well-established interests of privacy, autonomy and sexual integrity in light of threats posed by new technologies that encroach upon them," they stated. "Because voyeurism is a sexual offence, a reasonable expectation of privacy in the context of s. 162(1) should be interpreted in light of the harms contemplated in related provisions in the scheme for sexual offences in Part V of the Criminal Code.
"In the context of the voyeurism offence, 'privacy' should be interpreted with regard to personal autonomy and sexual integrity."