Teacher spy pen case: When do victims’ voices count? | Karen Bellehumeur
Tuesday, September 03, 2019 @ 3:04 PM | By Karen Bellehumeur
Former students of Jarvis who were the subjects of his recordings and present in the London, Ont., courtroom were pleased with the sentence — but were also drained. This was the first time that their voices were considered relevant to the criminal process.
The sentence comes eight years after Jarvis’s arrest and follows his acquittal at trial and an unsuccessful bid to the Ontario Court of Appeal. It took a decision by the Supreme Court of Canada to render a verdict that recognized the students’ rights to not have their private body parts filmed by their teacher.
The long arc of the Jarvis case caused me to reflect on victims’ participation in the criminal justice process. I was the prosecutor during the early stages of the case and observed the Supreme Court hearing as well as the sentencing. I witnessed a dramatic contrast in the amount of victim input allowed in each stage of the process.
At the Supreme Court hearing the interpretation of “reasonable expectation of privacy” was central to the court’s legal analysis and ultimate finding. Was it reasonable for female high school students to expect not to have their intimate body parts, such as breasts, secretly filmed by their teacher? Or was the public nature of a high school reason enough to expect that recordings of anything by anyone — including their teacher — could be made? The guilt or innocence of Jarvis hinged on the answers to those questions.
Since privacy rights are an important topic, particularly when it comes to women’s sexual integrity, there were many outside interest groups that wished to make submissions to the SCC. In total there were seven parties in addition to the Crown and the respondent that were granted intervener status. All parties were allowed to outline the factors they considered to be crucial in determining the meaning of “reasonable expectation of privacy” in the context of the case.
A chance meeting in the Supreme Court hallway with one of the students whose image had been recorded by Jarvis focused my attention on the unfairness of the situation. The court never heard the view of the students whose privacy had been violated. These were the individuals most directly affected by the crime yet they had no voice because the criminal justice system does not recognize victims as parties in criminal cases. The appeal process allows perspectives from outside interest groups but not the perspective of the victims themselves.
The sentencing process for Jarvis was very different. Mind you, such a hearing would not have even occurred had the trial judge’s acquittal not been reversed by the Supreme Court. However, once the students’ privacy rights were considered legally valid, the trial court was interested in receiving their victim impact information.
But why did their voices only become important at that stage? The courts may hear victims’ voices regarding a crime’s impact on them to determine a just sentence but cannot hear them when determining whether their privacy rights have been violated. Why were the views of outside interest groups more important than the victims’ views when deciding upon the connection between the victims’ personal privacy rights and their sexual integrity?
There is something wrong when the criminal justice system fails to allow victims the opportunity to advocate for their own rights. This is particularly true when doing so need not detract from the rights of the accused. Denying victims a platform to express their views on issues relevant to their personal rights, such as their privacy, perpetuates the inequality and powerlessness that gave rise to their victimization in the first place. Victims need to be empowered in legal proceedings, not further disempowered.
It is no coincidence that only one in 20 victims of sexual violence in Canada reports such incidents to the police. Participating in a system that undervalues victims’ views is not very inviting.
Those administering the justice system must reflect on systemic barriers to accessing justice and how these barriers can be overcome to ensure equality for all.
In the end, the sentence imposed by the trial judge validated the seriousness of Jarvis’s conduct. The victim impact statements were accepted and factored into the sentencing considerations without concerns of unfairness to Jarvis.
The use of victim impact statements in sentencing hearings demonstrates that providing a voice to victims does not result in fewer rights for the accused. Increased victim participation in the criminal justice system can expand access to justice for victims without infringing on the rights of the accused and fair trials. There is not a finite set of rights in existence that must be divvied up: it is not a zero-sum game.
In my view more victim input, including at the appeal stage, only strengthens the integrity of the justice system and ensures that trials are fair to everyone. That in turn could have the added benefit of improving the public’s faith in the administration of justice.
Karen Bellehumeur, formerly a Crown prosecutor for over 20 years, is now a human rights/criminal lawyer at Bellehumeur Law who specializes in representing survivors of sexual abuse. She is also a PhD candidate at Western Faculty of Law.
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