R v Jarvis: A Momentous Decision For Children’s Rights

The Supreme Court of Canada’s decision in R v Jarvis, 2019 SCC 10, is an extraordinary decision for children’s rights with far-reaching implications. In this blog post, I will review the majority’s decision with a focus on how it has strengthened the privacy rights of children and youth. I will also examine briefly the most likely areas for future criminal and constitutional litigation based on its core holdings.

Facts

Jarvis was a high school teacher in Ontario. He used a camera concealed inside a pen to surreptitiously video record female students. The students were clothed and engaged in normal activities in common areas of the school.  Most of the videos focused on the faces, upper bodies and breasts of these female students. The students did not know they were being recorded. At the time the videos were recorded, these students ranged in age from 14 to 18 years old.

Jarvis was charged with voyeurism under s. 162(1)  (c) of the Criminal Code. That offence is committed where a person surreptitiously observes or makes a visual recording of another person who is in circumstances that give rise to a reasonable expectation of privacy, if the observation or recording is done for a sexual purpose. The sole issue before the Supreme Court of Canada was whether or not the students recorded by the accused were in circumstances that gave rise to a reasonable expectation of privacy. The Ontario Court of Appeal had ruled, 2-1, that the Crown failed to prove beyond a reasonable doubt that the students did have a reasonable expectation of privacy when they were recorded.

The Decision of the Supreme Court of Canada

 The majority of the Supreme Court of Canada overturned the Court of Appeal’s decision and held that the students did have a reasonable expectation of privacy. In coming to this conclusion, the majority considered the following factors that are particularly relevant to the rights of children and young persons:

(1) Students Retain Privacy Rights At School

Where the students were recorded – that is, in their school – formed a significant factor in the Court’s analysis. Jarvis made the recordings while the students were in various locations at their high school. This included classrooms, hallways, the cafeteria and immediately outside the school. The majority of the Ontario Court of Appeal found that because the students were in “public” areas of the school, their expectation of privacy was considerably diminished.

But the Supreme Court’s decision makes it clear that while the students’ expectation of privacy would be lower at school that in “traditionally private locations” such as a private home, a school is not an entirely “public” place. Access to schools is usually restricted to certain persons, such as students, teachers staff and permitted guests. Schools are also subject to formal rules and expectations of those on their premises. (See Jarvis at para 73.)

That there were security cameras in the school did not undermine the students’ reasonable expectations of privacy either. The students would have reasonably expected they would be captured by security cameras incidentally for purposes related to safety and the protection of school property. But that does not mean they abandoned all expectations of privacy. Certainly, it does not flow from the fact security cameras existed that the students would have expected to be recorded at “close range with a hidden camera, let alone by a teacher” for his own private purposes. (See Jarvis at para 76.)

(2) A Teacher/Student Relationship Creates Expectations of Behaviour

The Court held that in order to determine the scope of the students’ privacy rights an examination of the teacher/student dynamics which lead to the videos being recorded was required. Jarvis did not accidentally capture these students. Some were filmed in multiple videos, at different locations at the school. Jarvis targeted particular female students and by filming them allowed them to be subject to indefinite “intensive scrutiny.” (See Jarvis at para 80.)

Succinctly put: Jarvis “betrayed the trust invested in him by his students.” As a matter of law, teachers are presumed to be in a relationship of trust and authority with their students. In a prior decision, the Supreme Court noted that “it is difficult to imagine a more important trust or duty” than the care and education of students by teachers: R. v. M. (M.R.), at para. 1. Students can thus “reasonably expect teachers not to abuse their position of authority over them, and the access they have to them, by making recordings of them for personal, unauthorized purposes.” (See Jarvis at para 84.)

Furthermore a school board policy in place at the time these videos were made prohibited Jarvis’ conduct as well.  The majority held that “[b]y-laws, regulations, policies or other formal rules that govern behaviour in a certain location or by certain persons may inform reasonable expectations of privacy”. The students would reasonably expect that teachers would abide by the applicable rules governing the recording of students”. (See Jarvis at para 83.)

 (3) The Students Were Young Persons

That the students were young persons was also a significant factor that played into the Court’s decision. In a crucial part of the judgment, the majority noted that the values that underlie privacy “apply equally if not more strongly in the case of young persons”: A.B. v. Bragg Communications Inc., at para. 18.  The Court continued:

That Canadian law provides children with greater privacy rights than similarly situated adults in a number of contexts evidences a societal consensus on this point, and on the shared value of protecting children’s privacy: see B. Jones, “Jarvis: Surely Schoolchildren Have A Reasonable Expectation of Privacy Against Videotaping for a Sexual Purpose?” (2017), 41 C.R. (7th) 71; A.B. v. Bragg Communications Inc., at para. 17, citing the Criminal Code, s. 486   and the Youth Criminal Justice Act, S.C. 2002, c. 1, s. 110  .

In addition, the responsibility of adults to respect the privacy rights of young persons was a point of focus. The majority held that reasonable adults must be “particularly solicitous of the privacy interests of children and young persons in relation to observation and especially visual recording.” Children are often unable to protect their own privacy interests. The majority further explained at para 87:

“…children… have limited choice  about which spaces they occupy, limited means to exclude others from those spaces, and limited choice about what parts of their bodies may be exposed in those spaces.  Children are also expected to be obedient to adults and follow their instructions, and they place a high degree of trust in adults and authority figures, such as their parents and teachers. And in a situation where an adult would be alert to the potential for intrusions on her privacy as a result of observation or recording, a child may be completely unsuspecting, putting her faith in the adults around her and failing to take evasive action, even if evasive action were otherwise possible.”

Future Implications

If children and young persons are entitled to greater privacy protections than similarly situated adults, the implications of this decision should not be underestimated. This week, the Supreme Court of Canada hears argument in the case of R v KJM, 2018 ABCA 278, which I previously blogged about. The sole issue on appeal is whether or not the Jordan ceiling of 18 months should apply to youth criminal justice proceedings. The ruling in Jarvis gives KJM a very powerful argument that his right to a trial without undue delay, as a young person, should require a different time limit than for a similarly situated adult. Prior courts across the country have already debated whether a ceiling of 15 or 12 months might be more appropriate for young persons.

In other cases – perhaps involving the contours of the right to counsel, for example – one can imagine arguments being fashioned that the scope of constitutional protections the courts should fashion for young persons must now be different than for adults in certain circumstances. Identifying those circumstances may not always prove so easy. But the need to ensure that the constitutional rights of our most vulnerable citizens – children and youth – are fully respected will require all justice system participants to consider the possible implications of Jarvis in all future youth justice cases.

 

Historical Sexual Assault Cases That Involve Youth and Adult Allegations – Can The Evidence Be Heard By A Single Court?

Sexual assault cases are very challenging for counsel by their very nature. But when the allegations of abuse span a time period that encompasses an accused person’s 18th birthday, these cases can become legally complex in surprising ways.

If an adult accused person is alleged to have sexually assaulted a victim the trial takes place in adult court. If the accused person was a young person at the time of the alleged assault, the trial takes place in youth court. This is the case even if the accused person is now 18 years of age, and the charges related to conduct that occurred many years in the past: see YCJA s. 14(5).

But what happens when the allegations are historical and cover repeated allegations of sexual assault? If the accused person’s 18th birthday falls in the time frame of the alleged abuse, this presents the Crown with some difficult decisions. It is usually the case that a single victim comes forward to say s/he was abused by the accused person repeatedly, over a time period involving several years.

A single trial encompassing both the youth and adult charges on one indictment is generally prohibited by law. That is because a youth justice court retains exclusive jurisdiction over youth cases and an adult court retains jurisdiction over adult cases. In Ontario, the youth justice court is the Ontario Court of Justice. In cases where the Crown proceeds by indictment, adult persons may elect trial in either the Ontario Court of Justice or the Superior Court of Justice. But regardless of which choice is made, that court is an adult criminal court for the purposes of the proceeding before it and does not have jurisdiction over youth court charges.

The Ontario Court of Appeal has ruled that a single court cannot try adult and youth criminal charges together, even when the same victim is testifying for the Crown in both cases: see R v P.M.C, 2016 ONCA 829. There is simply too much risk that the single judge will conflate adult and youth jurisdiction and the applicable legal principles that apply in each court. This may require a victim to testify multiple times (i.e. at least once in youth court and once in adult court) if the Crown pursues both sets of charges. It also raises a possible risk of inconsistent verdicts, if a judge in youth court comes to different conclusions about the strength of the evidence than the judge in adult court.

Thus, Crown counsel sometimes seek to limit the prosecution to the charge(s) in adult court, and invite the victim to nevertheless testify about everything that happened, including when the accused person was a young person. Is this relevant evidence admissible as part of the full context of the victim’s experience, or is it irrelevant or even barred by law as an adult court has no jurisdiction over what occurred when the accused was a young person?

In R v L.S., 2019 MBPC 6, Harvie J. had to rule on this question in adult criminal court. The accused was charged with multiple historical sexual assault related offences against his sister. The allegations spanned a multi-year time frame which covered the accused’s 18th birthday.

Crown counsel sought to have s to have the complainant testify at trial about the facts which underlie the youth allegations, and took the position such evidence was admissible as part of the narrative in order to allow the Court to properly assess the credibility of the complainant. Defence counsel argued, inter alia, that the Court did not have jurisdiction to hear the allegations involving the youth matters as those are within the sole jurisdiction of the youth court.

Harvie J. ruled in favour of the Crown. The evidence was not being tendered by the Crown for the purposes of establishing the guilt of the accused on matters which would have to be tried by a youth justice court. Rather, it was for narrative purposes only. As such, YCJA s. 14 did not present a statutory bar to the adult court receiving the evidence. See also R v D.C., 2018 ONSC 1863.

Counsel should approach all cases involving historical allegations carefully. As this case demonstrates, youth and adult criminal court exercise different jurisdiction. If Crown or defence counsel wishes to introduce evidence extraneous to the dates on the indictment, it should be made clear to the court on what basis and for what purpose. Confusing the jurisdiction of the two courts can lead to review on appeal.

 

 

 

Adult / Youth Court Statistics 2016/2017

Statistics Canada released “Adult and youth criminal court statistics in Canada 2016/17” today. Some highlights:

  • It continues to take longer to complete youth court cases. The media length of time to complete a youth court charge increased 7% to 106 days over the past year.
  • Charges completed in 2016/2017 took 14 days longer in youth to complete than they did a decade earlier. (This may be due to the fact that only serious, more complex cases are being litigated in youth court as simpler cases are being diverted.)
  • Ontario had the longest charge process time – about 134 days.
  • There were over 29,000 cases in youth court, involving over 110,000 charges.
  • The average number of charges in youth court cases grew from 3.3 in 2007/2008 to 3.9 in 2016/2017.
  • A custodial sentence was imposed in 13% of guilty youth court cases. But curiously, the median length of a custodial sentence was 30 days in adult court but 50 days in youth court. (One theory for why this has occurred is that youth are rarely subjected to the “short, sharp” sentences adults may receive for minor offences. Thus, when a youth does receive a custodial sentence, it tends to be at least a few months in duration, thus affecting the median.)

Imposing An Adult Conditional Discharge To Avoid a “Permanent” Youth Record

When a young person is found guilty of an offence he or she does not receive a criminal record. Rather, a youth record is created. Youth records are subject to access periods which range in duration from a few months to 5 years, depending on several factors. If a young person does not re-offend, eventually his or her entire youth record will no longer be accessible to the police, Crown, or the courts.  It is a chance at a fresh start for the young person and creates an incentive for good behaviour.

(A youth record may be accessed with a youth court order under certain circumstances even if the access period has expired, but that is an exception to the general rule.)

However, if a young person keeps offending it is possible to accumulate a significant youth record. What happens if that person then turns 18 and is convicted in adult court of a crime?

Pursuant to YCJA s. 119(9), if a young person’s youth record remains within the retention period, and he or she is convicted as an adult of a crime, the entire youth record loses the protections of the YCJA. It becomes a “permanent” criminal record just like an adult criminal record. This is a serious consequence for an offender.

In some cases, accordingly, defence counsel may advocate for their client (now a young adult) to receive an adult conditional discharge for a first offence in adult court. Conditional discharges may be imposed pursuant to Criminal Code  s. 730 where the court “considers it to be in the best interests of the accused and not contrary to the public interest”.

The existence of a prior youth record will often be seen an aggravating factor by the Crown. To grant a discharge in the face of a youth record could be seen as  counterproductive. What lesson would this teach the (now) young adult offender?

But defence counsel may argue that notwithstanding the prior youth record, the consequences of an adult conviction would be so significant that a discharge should be imposed. If the Courts are concerned about the offender’s long-term rehabilitation, a permanent youth record would be a huge impediment to the offender breaking the cycle of criminality.

In R v BS, 2018 ONCJ 904, Wheeler J. of the Ontario Court of Justice was faced with this challenging sentencing decision. B.S. had a lengthy youth record. He pleaded guilty to mischief for sending a (fake) bomb threat to a family that lived next to him. B.S. suffered from a number of developmental and mental health conditions. He acted out in this way as he was frustrated but did not really intend to harm anyone.

Wheeler J. imposed a conditional discharge despite the lengthy prior youth record. Her Honour noted that a conviction would have a “significant collateral consequence for B.S., of causing his youth record to “be dealt with as a result of any adult” pursuant to s. 119(9)(b) of the Youth Criminal Justice Act.”  Such an outcome would be “counterproductive to his efforts at rehabilitation.”

Counsel should consider the very serious consequences of an adult conviction when dealing with young clients. In some cases, a prior youth record may not necessarily be a bar to the imposition of a conditional discharge. Crown counsel should always consider the consequences of YCJA s. 119(9) and ask in each case if the public interest is truly served better by the offender’s youth record effectively becoming a permanent record by virtue of this subsection.

 

 

US Senate Passes Juvenile Justice and Delinquency Prevention Act (2018)

In a powerful bi-partisan moment, the US Senate voted unanimously for a five-year reauthorization of the Juvenile Justice and Delinquency Prevention Act (JJDPA).

The JJDPA sets core safety standards for juvenile offenders that states must follow in order to qualify for federal grants.  The act hasn’t been reauthorized since 2002.

The JJDPA would ban states from holding children in adult jails even if they’ve been charged with adult crimes. It would also require states to collect data on racial disparities in the juvenile system and to come up with concrete plans for addressing those inequities. It would ban the shackling of pregnant girls, as well as provide funding for tutoring, mental health, and drug and alcohol programs for kids.

More information is available online at http://www.act4jj.org/

The Bill now awaits President Trump’s signature.

Youth vs. Adult Publication Bans

An unusual, and very interesting decision was just released by the Alberta Court of Appeal. In R v Canadian Broadcasting Corp., 2018 ABCA 391, the primary issue before the Court was whether or not leaving information on the internet can violate the terms of a publication ban. In deciding the case, the Court compared the publication ban provisions of the Criminal Code with those in the YCJA and noted some interesting distinctions.

Facts

On March 4, 2016, the body of a child was found in Alberta. The CBC posted articles online on March 5 and 8, 2016, including the child’s name, photograph and other identifying information.

Subsequent to these stories being published, a man was charged with killing the child. A publication ban was issued on March 16, 2016 under section 486.4(2.2)(b) of the Criminal Code, prohibiting any publication of the victim’s name. The section applies when the Crown applies for such a ban and the victim is under the age of 18.

The CBC did not post any more stories online. But, it refused to remove the existing stories. These remained publicly accessible. The Crown took the position that leaving the stories online constituted an act of “publication” in violation of the ban. The CBC disagreed.

Criminal Code Publication Ban Provisions

Sections 486.4(2.1) and (2.2) of the Criminal Code state the following:

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (emphasis added)

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

Curiously, it is an offence under section 486.1 of the Criminal Code to violate a publication ban made under section 486.1(1), (2), or (3), but it does not include section 486.4(2.2.)   As a result, the Crown brought an originating application in the Court of Queen’s Bench requesting that the CBC be cited in criminal contempt.

The Criminal Code does not define “published”, “broadcast” or “transmitted” for the purposes of section 486.4.

YCJA Publication Ban Provisions

By contrast, section 2(1) of the YCJA defines “publication” to include making information “accessible to the general public through any means, including print, radio or television broadcast, telecommunication or electronic means”.  It also defines “disclosure” to mean “the communication of information other than by way of publication”, which is also prohibited in certain circumstances.

The Alberta Court of Appeal held that these definitions do not appear in the Criminal Code, and that Parliament must have intended to create these differences for a reason.

Result

The Crown argued that applying the definition in the YCJA of “publication” and “disclosure” would encompass the CBC’s conduct and should result in a conviction accordingly. But the Court of Appeal held that while statutes dealing with similar subjects should be presumed to be coherent, there was another interpretation capable of being applied in this case. The CBC’s refusal to remove identifying information from its website after the publication ban was imposed was not clearly contemplated by the Criminal Code publication ban provisions. It was up to Parliament to amend the Criminal Code accordingly if such conduct was meant to be criminalized.

Commentary

The case is interesting from a youth justice perspective because it highlights a little known distinction between the YCJA and Criminal Code – the definition of “publication” and how a violation under one statute might not constitute one under another. On the one hand, it is not surprising Parliament might have included more robust protections for publication ban under the YCJA given that both accused persons and most victims are under the age of 18. But it does seem oddly asymmetrical child victims under the Criminal Code are not afforded the same level of protection when a publication ban is issued as they are under the YCJA.

If the case is appealed to the Supreme Court, it will be an important decision on the principles of statutory interpretation. Parliament, of course, could amend the Criminal Code at any time to ensure child victims are afforded the same level of protection regardless of the age of an accused person.

 

 

 

Deferred Custody Cannot Be Imposed Consecutively: Quebec Court of Appeal

Can a youth court judge sentence a young person to a period of open custody, followed by deferred custody (or “house arrest”?) The Quebec Court of Appeal ruled in R v X, 2018 QCCA 1910 that this was unlawful.

The trial judge had imposed a 135 day sentence in the following manner:

  • 45 days open custody;
  • followed by 45 days deferred custody; and
  • followed by 45 days of community supervision.

The Court of Appeal held this sort of hybrid sentence was not permitted under s. 42(13) of the YCJA, which does not permit a deferred custody and supervision order from being served consecutively to a custody and supervision order. Rather, a custody and supervision order simply must normally be served with 2/3 in custody, and 1/3 under community supervision.

While the reasons of the appellate court are brief and do not give much detail about the trial judge’s reasons, one can infer that the trial court may have been attempting to structure an orderly transition for the young person from custody to community supervision. Curiously, these types of sentences are not uncommon in adult court, where the sentence begins with “real jail” and then is followed by a conditional sentence (“house arrest”), as long as the total sentence does not exceed 2 years: see R v Ploumis, 2000 CanLII 17033 (Ont. C.A.)

The decision from the Quebec Court of Appeal is another important reminder that some sentencing outcomes which are permitted under the Criminal Code may not be lawful under the analogous provisions of the YCJA.