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CRIMINAL CODE OFFENCES - Sexual offences, public morals, disorderly conduct and nuisances - Voyeurism

Monday, October 30, 2017 @ 9:19 AM  

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Appeal by the Crown from the acquittal of the accused, Jarvis, of voyeurism. The accused was a high school teacher who used a camera pen to surreptitiously take videos of multiple female students and one female teacher while conversing with them in school. The videos included the subjects' faces, but primarily focused on their chest and cleavage area. The videos ranged in duration from six seconds to two and one-half minutes. The principal received a complaint regarding the accused's suspected activity. The principal subsequently observed the accused talking to two students while holding a pen emitting a red light. The principal directed the accused to turn over the pen and in turn provided it to police. Police reviewed three videos on the pen without a warrant. Based on that review, a warrant was obtained to search the remainder of the pen's storage device. At trial, the accused established a breach of his s. 8 Charter rights arising from the initial cursory search of the pen's storage device based upon his reasonable expectation of privacy in the pen's contents. The trial judge ruled that the evidence was nonetheless admissible pursuant to s. 24(2) of the Charter. The accused was acquitted on the basis that the Crown failed to establish beyond a reasonable doubt that the videos were taken for a sexual purpose. The Crown appealed.

HELD: Appeal dismissed. The trial judge erred in finding that the videos were not made for a sexual purpose. The accused's morally repugnant conduct involved taking surreptitious pictures of his female students' breasts. The trial judge erred in finding that a lack of nudity derogated from the sexual purpose of the videos. In addition, the trial judge erred in concluding non-sexual purpose inferences were available based on the circumstantial evidence. No other such inferences were identified, nor were any available on the evidence. The appeal would have been allowed based on the trial judge's errors, but for the fact that the Crown failed to prove the other component of voyeurism, namely that the recordings occurred in circumstances which gave rise to a reasonable expectation of privacy. At the time of the videos, the students were engaged in normal school activities and interactions in the public areas of the school, where there were many other students and teachers present.

R. v. Jarvis, [2017] O.J. No. 5261, K.N. Feldman, D. Watt and G. Huscroft JJ.A., October 12, 2017. Digest No. TLD-October302017002