Actually, Secretly Filming Students’ Cleavage Is Illegal, Canada’s Supreme Court Rules

Actually, Secretly Filming Students’ Cleavage Is Illegal, Canada’s Supreme Court Rules

In 2015, Ontario high school teacher Ryan Jarvis was caught secretly recording the chests of female students with a spy pen. But Jarvis was acquitted after the Ontario Court of Appeal reasoned that the students didn’t have a reasonable expectation of privacy at the public school.

Today, the Supreme Court of Canada ruled against this decision, declaring that the students did have a right to not be filmed with a spycam.

“In this case, when the entire context is considered, there can be no doubt that the students’ circumstances give rise to a reasonable expectation that they would not be recorded in the manner they were,” the Supreme Court wrote in its decision on Thursday, charging Jarvis with voyeurism.

Jarvis nonconsensually filmed 27 students between the ages of 14 and 18, according to the decision. The videos were shot in hallways, classrooms, and the cafeteria, among other locations, and mostly included female students “wearing low-cut or close-fitting tops.” The court noted that you can hear Jarvis talking to the students in some of the videos, which recorded audio. Further, Jarvis appeared to position the spy pen in such a way as to record from more invasive angles.

“It is also striking that a number of the videos are shot from above or beside female students who are seated in classrooms or computer labs, or who are in the hallways of the school, at angles that capture more of their breasts than would be visible if the students were recorded head on,” the court wrote.

“In this case, the students had a reasonable expectation of privacy regarding how their bodies would be observed in the classrooms and hallways of their school,” the decision states, adding that the technology the teacher used — a camera inside of a pen — let him take lengthy videos “in angles and in proximity that went beyond the access that the students allowed in this setting, thus infringing their autonomy.” The court also pointed out that these videos, of which there were reportedly over two dozen, were “objectively sexual in nature.”

Gillian Hnatiw, vice chair of the Women’s Legal Education and Action Fund and an attorney who specialises in sexual harassment and assault cases, told Gizmodo via email, “Overall, I am thrilled with the decision.”

“The Court makes it clear that ‘privacy’ in the digital age is about way more than just your location, and that our expectations of privacy are about a number of common sense factors that depend on context as a whole,” Hnatiw continued. “Women do not give up all expectations of privacy with respect to their bodies simply by venturing out into public. More importantly, the Court recognised that this case is about more than just privacy, but also sexual integrity and the rights of women to exercise meaningful autonomy over their bodies, including visual access to our bodies.”

The sexual nature of the videos was a key point of contention in the original hearing in 2015. At the time, Justice Andrew Goodman argued that the videos weren’t sexual in nature, CBC reported.

Most of the judges on the Ontario Court of Appeal disagreed with that decision but upheld Jarvis’ acquittal, reasoning that the students didn’t have a reasonable expectation of privacy, using the school’s visible security cameras as an example of this expected surveillance.

Thursday’s decision by the Supreme Court of Canada sets an important principle around privacy, especially in public settings, and also around voyeurism. It signals to the public that even in an already heavily surveilled public setting (the school had 24-hour security cameras), individuals have a right to expect not to be nonconsensually filmed in an objectifying way.

“A student attending class, walking down a school hallway or speaking to her teacher certainly expects that she will not be singled out by the teacher and made the subject of a secretive, minutes-long recording or series of recordings focusing on her body,” the court wrote, adding that “given the content of the videos recorded by Mr. Jarvis and the fact that they were recorded without the students’ consent, I would likely have reached the same conclusion even if they had been made by a stranger on a public street rather than by a teacher at school in breach of a school policy.”

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