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 article, I review the majority’s decision with a focus on how it has strengthened the privacy rights of children and youth. I 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: