I'm Matt Shepherd. The Jarvis case is back in the news -- a court case about a teacher filming his students for sexual purposes, which made it all the way up to the Supreme Court -- which makes this a timely moment to talk about that case, and its broader implications.  

Lisa Kelly is a criminal law scholar, examining privacy issues among other things. She recently published a paper on the Jarvis case... and some of the issues that the Supreme Court decision raises about surveillance and privacy in general. She joins us, with Lisa Kerr, also a criminal law professor at Queen's Law, and the developer and instructor of the criminal law module in Law 201/701, Introduction to Canadian Law.

Her paper is here: A Tale of Two Cameras - Sex and Surveillance in R v. Jarvis

If you enjoy the podcast, take a moment to subscribe! All of our courses are rooted in legal research, but you can learn more from Lisa Kerr about Criminal Law in Canada through her module in Law 201/701, Introduction to Canadian Law, at takelaw.ca.

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00:04 Matt Shepherd: Welcome to Fundamentals of Canadian Law. I'm Matt Shepherd. The Jarvis case is back in the news, a court case about a teacher, filming his students for sexual purposes, which made it all the way up to the Supreme Court, which makes this a timely moment to talk about that case, and it's broader implications. We're fortunate to have Lisa Kelly as part of the Faculty of Law here at Queen's. She's a criminal law scholar examining privacy issues among other things. She recently published a paper on the Jarvis case, and some of the issues that the Supreme Court decision raises about surveillance and privacy in general.

00:40 MS: She joins us with Lisa Kerr, also a Criminal Law professor at Queen's Law, and the developer and instructor of the Criminal Law module and 'Law 201/701: Introduction to Canadian Law'. Fundamentals of Canadian Law is brought to you by the Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca. Lisa Kelly, you've recently written something in Criminal Reports about Jarvis and the Supreme Court and, can you can tell us a bit what the paper's about?

01:14 Lisa Kelly: Sure. So Jarvis was a case that was closely followed by a lot of different groups, by feminists, by people who work in schools, people who attend schools... And that's really because of the facts of the case. So, we have all most of us, hopefully, fortunately have at one time been students in a school, and that's the context from which this comes out. And Mr. Jarvis was an English school teacher in London, Ontario, and, he was using a pen camera. So we all know about the James Bond type era when you would be a spy, and the spy would have a pen camera, but he was using it for what I think we can all reasonably agree was a sexual purpose that we do not expect of, and that we strongly condemn of, a teacher to do to their students.

02:17 MS: Right. Specifically, he was...

02:21 LK: So he was going around the school, in the classroom and the corridors and the cafeteria, and he was surreptitiously filming students, and in particular, female students. He was zooming in on their breast area, and pretty clearly doing so for a sexual purpose. I just wanna note that at the trial level, which was arguably quite a strange outcome, the trial judge was not convinced beyond a reasonable doubt that Mr. Jarvis was filming for a sexual purpose, and the crime that he was charged with, which is voyeurism... It's a relatively new crime in our criminal code that requires that the filming or observation be done for a "sexual purpose."

03:15 LK: He was not... The trial judge wasn't convinced beyond a reasonable doubt. As I say, a rather strange ruling, because the filming did clearly involve zooming in on areas that we would generally in society agree were sexually motivated. So, the case then went up to the Ontario Court of Appeal, and at the Ontario Court of Appeal, they easily overturned that issue, finding that there was a sexual purpose, but, they held that the Crown hadn't proved in another part of the crime, and that was that in order to convict someone of voyeurism, you need to have had a reasonable expectation of privacy against that surveillance.

04:05 MS: Right. And, there's a couple levels of complication there. One is, is a school in and of itself, reasonable expectation of privacy. It's kind of a quasi-public space.

04:15 LK: Yeah.

04:16 MS: And there's also the fact that as you talk about substantially in your paper, the students were already being filmed.

04:22 LK: Absolutely. So this ends up being a really key point, and the Ontario Court of Appeal ends up coming down on the side that they did not enjoy a reasonable expectation of privacy vis-a-vis this filming, for precisely the reason you're saying, right? Public schools are public in all kinds of senses, they're public in the sense that students are compelled by public law to go to them, and they are also today in 2020, highly surveilled places. Students were on notice that they were subject to essentially 24 hour... They're not at school hopefully for 24 hours, but that there were 24 hour surveillance cameras operating then.

05:05 LK: And, a big question that then ended up going up to the Supreme Court, was, does the public nature of the school, including the presence of the surveillance cameras, does that then mean that Mr. Jarvis' surreptitious pen filming wasn't a violation of their privacy? Right? Have they already surrendered their privacy because they're in this public space, they see cameras all around, they're already being filmed. This was happening in corridors, in classrooms, and that was a question that was alive right to the Supreme Court.

05:47 MS: This is one of those spaces where academia is interesting, 'cause the common sense approach is obviously these are completely different things for entirely different purposes and, on its face it looks like it's a pretty easy division to make.

06:00 LK: Definitely. I think if we went out and pulled people on the street or in our communities, I think people... Hence why I think the Jarvis case, both its facts, but also these arguably pretty strange legal findings, both at the trial level and the Ontario Court of Appeal finding, I think that's in part why the case generated a lot of interest, because it seemed really antithetical to common sense reasoning about student life, teacher life, and what should be going on. I think one of the interesting things as you're saying, for us who are legal academics or thinking about these kinds of ideas is that, ideas of privacy and how we define privacy are actually incredibly complicated. And, I think for the Ontario Court of Appeal, there was a sense that what we should be primarily concerned about is the space, is the place when you enter into a particular place, have you kind of surrendered privacy that you might enjoy for instance when you're at home?

07:12 LK: And that is one that is that type of reasoning about privacy has a long lineage in law. We historically tended to be concerned primarily about place, where are you? But certainly, since the charter countervailing ideas of privacy as traveling with the individual, and hence being really about reasonable expectations, which is the language in the voyeurism provision, that suggested a slightly more nuanced understanding of privacy, in that I may well be in a very public place, but there may be types of conduct that I still am going to be able to assert a privacy interest against.

07:56 MS: Right.

07:57 LK: And I think those complexities and why the idea of privacy is so complicated, it takes kind of some digging down. And I think that's why you saw some divisions on in the court.

08:09 Lisa Kerr: But we do get the return or the arrival in this case of common sense from the Supreme Court of Canada's decision, right?

08:16 LK: Yeah, I think so. I think here, the outcome in Jarvis by the Supreme Court was that these students did indeed enjoy a reasonable expectation of privacy against a teacher surreptitiously recording them for a sexual purpose. And hence, this could indeed qualify as voyeurism prohibited by law. But one of the interesting things that I really focused on in my piece is that the Court reaches that conclusion about the student's privacy from Mr Jarvis' pen camera by contrasting it with their lack of privacy vis-a-vis the surveillance cameras. And that's why I called the piece a Tale of Two Cameras, because this is really about how do we, in a hyper-surveilled society understand this kind of privacy that zooms in and out, depending on whose camera is viewing us and for what purpose.

09:21 MS: Right.

09:22 LK: And that's complicated, because we are all being surveilled and are all arguably on camera many times in a day. When do we get to say, "I am private from that camera, but not the other." And one of the things I was concerned about is that Mr. Jarvis's, as Matt has said for really all of us, I think, in the general public, Mr. Jarvis's use of his pen camera as a person in a position of trust at a school is fairly easily... It's pretty easy to see that that's objectionable, and that it does seem to violate ideas of privacy that we have. And yet on the other side, the surveillance cameras at the school were viewed by the courts, and arguably, I would say by the parties and the interveners as necessarily a good thing.

10:17 LK: The court talked about them as safety promoting and didn't see what I think are some of the darker sides of those sets of cameras as well. And what I mean by that is that students today are attending schools where they may have police in school, they are subject to really pretty rigorous discipline policies. And the presence of cameras, yes, can be protective of some, but it can also be used as evidence in future criminal proceedings. Instances that may once have been handled by school authorities alone are increasingly kicked into the criminal side. And the politics about those cameras, I think got last in the very common sense vilification of Mr. Jarvis's pen camera.

11:04 LK: You write in the piece that, "My goal here is to trouble the easy distinction the court drew between sex and surveillance." That seems to really be the heart of it.

11:14 LK: Yeah, I think so. In this, particularly in the Me Too moment, but certainly long preceding it as well, I think people are, for lots of really good and important reasons, are really concerned about sexual wrongdoing, sexual invasions of privacy, the effects that that has on people, the effects that that has on people's ability to participate fully in public, including at a public school. But I think exceptionalizing sex, in this case, exceptionalizing Mr. Jarvis's pen camera can have also some costs and some downsides. And one of the downsides is that when we exceptionalize sexual invasions of privacy, as our voyeurism provision does, by requiring a sexual purpose, we may legitimate, or at the very least neutralize other forms of surveillance, other forms of observation that can also have really significant social consequences, in particular, for students of color, for students with disabilities, some students who may be involved in altercations at school or otherwise, and who may find themselves disproportionately affected by school surveillance and discipline regimes.

12:44 LK: And these are really complicated sets of questions, but I think singling out sex as the foundational form of wrongdoing that we are solely or primarily concerned with can background some of these other... And that was a really key motivator for me in the piece.

12:53 LK: Right. And then part of the history that you describe is that pointing out that these surveillance cameras aren't always serving an innocuous purpose or a good purpose, just safety, making sure that schools are places that students can go to without having to worry about violence and so on. There's other things that these surveillance cameras may be doing, and you talk about the sort of rise of criminal law enforcement that goes on within schools and by teachers, which is gonna be aided in at least some cases by the footage gathered with these other cameras.

13:41 LK: Yeah, so that's absolutely right. And I think that is a factor and a piece that needs to be part of our calculus when we are thinking about these different kinds of regimes, over the last four decades. And I'm working now on a project, a shirt-funded project on policing in schools. Over the last four decades, there has been an exponential rise in attention to violence and safety in schools. And again, there have been very important reasons for this, and in our current teachers strike right now in Ontario school safety, including staff safety is actually a key part of the dispute and what sort of protections are available for staff and students, so it is an ongoing issue and concern. But one of the tactics that has been used is that there has been a turn in many contexts toward policing in schools and toward a sense that schools are dangerous places and the source of that danger are students themselves and that we need, not only school discipline policies but we need sometimes to have those actions moved into the criminal system and have a criminal response. And as you're saying, Lisa, surveillance footage can indeed be important for safety or finding out what happened in a particular instance, but it can be used as evidence in a criminal trial, it can be used to get a plea bargain.

15:22 LK: And we have to ask, and there's pretty clear evidence on this. What students, which students what kind of wrong doing is most likely to attract a more punitive response. Again, disproportionate impacts on students of color, indigenous students in some contexts, also in some contexts, clearly, students with disabilities. And that's the the overhang or the law and politics piece that we have to be aware of when the court as Lisa said, just uses the fairly, but now simple language that these are just "safety-promoting cameras". There's a lot going on in schools with these cameras with the larger context of how we understand schools.

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16:58 LK: It's a fascinating article and it's part of why I think our jobs as academics or as law professors who get to comment on cases can be kind of a cool place to be sometimes. You're saying here, yes, the Supreme Court of Canada made the right decision, right? When you're talking about the particular outcome of the case. Conviction here, is appropriate for this teacher. But you're also saying Let's dig a little deeper into some of the consequences of what the court is saying. I'm curious, were there any interveners in front of the Supreme Court of Canada making the arguments that you're making today, or in this piece?

17:38 LK: Not specifically, no. Some interveners did comment on student privacy a little bit vis-a-vis discipline policies. But no one, no intervener... And I've reviewed all the intervener facta, no one made the specific observation that perhaps the best line of reasoning here, isn't to tie student privacy vis-à-vis Mr. Jarvis camera to an opposing legitimate public survey lens camera. That's essentially kind of the analytical move at the heart of this case is that a series of public-private distinctions. And the privacy and the expectation of privacy, vis-a-vis Mr. Jarvis camera is built on and grows out in part the legitimate publicity of surveillance cameras in schools, and no one certainly before the Supreme court made the argument in precisely those terms.

18:42 LK: And I would just go back, actually, I think another... This one was less of an interest kind of in my paper, but Steve Coglan of Dowhosi has written this in a short comment that he gave on Jarvis and that's just that... Another thing you did see the court struggling with, about the privacy question, vis-a-vis Mr. Jarvis camera, is that the court ends in this fairly dissatisfied multifactorial analysis of what privacy looks like, what reasonable expectation of privacy looks like in a school context. And they make it very specific to the facts of this case that students enjoy a reasonable expectation of privacy from being surreptitiously filmed for sexual purposes, essentially by a teacher.

19:33 MS: Right.

19:33 LK: How much guidance that gives you in future cases? What if it had involved students filming one another, "what if they were right off school property, what if they were at the shopping mall, and Mr. Jarvis were there? And I'm not necessarily criticizing them for that I think it's difficult to draw out a taxonomy of what privacy looks like, but I think it actually points to... And this was the point the Criminal Lawyers' Association made in their facta. It points to a larger set of questions and problems, maybe with the voyeurism offense itself, because these questions about when one enjoys a reasonable expectation of privacy vis-a-vis filming, will arguably end up being deeply contextual, and tend to run on a case-by-case basis, and that always raises a little bit of red flags for us in terms of people having knowledge about when they are potentially breaking the law versus when they are just out and about in the world using their iPhones.

20:42 MS: Well, in a way you've got here a case that almost has the sharpest possible points of contrast, where you've got someone in a position of authority, taking secret videos of people, for obviously prurient interests. And at the other end, you've got surveillance, which is ostensibly and as you've raised this, can be questioned. But, ostensibly it's to protect students from violence in schools. And then there's this massive gray area in the middle of surveillance in a store to prevent shoplifting. Well that's not quite as far out on the side as surveillance in a school to protect students from violence, or a student filming another student for terrible reasons is not as far out there as a teacher in a position of authority. So, you've got almost an interesting spread here where all of the gray space seems to be in the middle.

21:31 LK: I think that's right. I think that's absolutely right, and I think... I certainly wasn't making the case for instance that a Supreme Court or anyone is ever going to say that school surveillance cameras are "a violation of students' privacy." I think that ship sailed a long time ago, because the Supreme Court has recognized all sorts of ways that students do surrender some of their reasonable expectation of privacy when they come into school. And one could have debates about where they have drawn those lines, but I think they have clearly been drawn for instance when it comes to searches at school, students enjoy lesser protections when they are searched at school, than they would enjoy in other contexts because of the nature of the school.

22:16 LK: So, that certainly is true, but I think when it comes to as you said, these questions about sexual filming in particular for the purpose of voyeurism, this is a real extreme case. Right? It's someone in... As you said, it's someone in a position of trust, they are with younger people. These are all people who are minors. There are all these factors I think that made this a case where there was a lot of potential will to find that this was a violation of privacy. But where one will draw that line in future I think is extremely difficult to tell. And I don't think Jarvis gives us a lot of specific guidance on that.

23:03 MS: Right. There's so much wrapped up in intent and use. But what if someone is using the school security footage for creepy purposes, where does that... But there's... But what is interesting about this stuff is that it just leads you to so many interesting places.

23:16 LK: Absolutely. And they made some point about that. How could it be used? The fact that individual teachers couldn't gain access to the school security footage, but what if they could have, and when with the school surveillance camera be potentially transformed into a form of voyeurism.

23:35 MS: Right.

23:35 LK: Not incredibly clear here, and I think the court and others do try to make these very fast, hard, easy distinctions between the two sets of cameras, but not entirely clear that that would always hold, even in the context of sex, but definitely not in terms of these larger social context questions that I'm interested in.

23:55 MS: If people wanna read this paper Lisa, where can they find it?

23:58 LK: Yeah. So this piece is published in the Criminal Reports. They're actually... The Editor-in-Chief is actually a colleague of ours, Don Stuart here at Queen's Law School, and you can find this piece on my academia.edu page: Lisa Kelly, and the name of the piece, I think I've mentioned it before, but, it is A Tale of Two Cameras, sex and surveillance in R v. Jarvis. Great. Lisa and Lisa, thank you both very much.

24:27 LK: Thank you Matt.

24:27 LK: Thank you.

24:31 MS: Thanks to Lisas Kelly and Kerr. Criminal Law includes issues that resonate to the deepest principles of freedom and justice in Canada, and you can learn more about it in the Criminal Law module of Law 201/701: Introduction to Canadian Law. If you're interested in our rights as citizens, and the use of power in Canada, you can take a more profound look at the subject in Law 205/705: Public and Constitutional Law. You can learn more at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Hodinoshoni territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen's Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Thanks for listening.