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.
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.”
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.