School Board Update

Supreme Court Privacy Case Affirms the Importance of School Safety

School Board Update

Supreme Court Privacy Case Affirms the Importance of School Safety

Date: February 15, 2019

Yesterday, the Supreme Court of Canada held that a teacher committed the crime of voyeurism by surreptitiously recording images of female high school students. In finding that the students had a reasonable expectation of privacy, the Court relied on the trust imposed on teachers and the need for a safe and orderly school environment – a positive for school boards.

The Decision

The issue in R v Jarvis was whether the students whose images the teacher had recorded had a reasonable expectation of privacy even though the teacher captured them while engaged in ordinary school-related activities in common areas of the school. The teacher used a camera concealed in a pen. His recordings mainly featured the students’ upper bodies and breasts. Although his purpose was sexual, the teacher argued that the students could be observed and therefore could be lawfully recorded.

The majority judgment of the Court affirms and emphasizes that the existence of a reasonable expectation of privacy – which defines the legal threshold for privacy protection – depends on the context. Recording of images, the majority explained, is “fundamentally” more intrusive than mere observation. Moreover, the teacher’s means of recording and his sexual purpose rendered his actions criminal. It was acceptable, the majority made clear, that the school in which the teacher committed his crime had surveillance cameras; the cameras did not record audio, could not be directed and were in place for a legitimate purpose – the maintenance of school safety.

Regarding the importance of school safety and the trust imposed in teachers, the majority said:

This brings me to another relevant circumstance surrounding the making of the recordings at issue in the case at bar: the fact that Mr. Jarvis was a teacher at the school and that his surreptitious recording betrayed the trust invested in him by his students. Teachers are presumed to be in a relationship of trust and authority with their students: R. v. Audet, [1996] 2 S.C.R. 171, at paras. 41-43. Indeed, this Court has expressed the view that it is difficult to imagine a trust or duty more important than the care and education of students by teachers: R. v. M. (M.R.), at para. 1. It is inherent in this relationship that students can reasonably expect teachers not to abuse their position of authority over them, and the access they have to them, by making recordings of them for personal, unauthorized purposes…

…the understanding that school will be a safe environment and that teachers will work to keep it that way, while limiting students’ privacy expectations with respect to safety-related searches by teachers, enhances students’ expectations that teachers will scrupulously respect their privacy — and a fortiori, their bodily and sexual integrity — when invading that privacy is not necessary to maintain a safe school environment.

Implications for School Boards

This handling of the school context is optimal. It means that students will not enjoy an expectation of privacy that precludes a school board from maintaining a safe environment, even though they will be protected from conduct resembling that of the voyeuristic teacher. R v Jarvis adds to the Supreme Court’s consistent recognition of the trust imposed on teachers and a school board’s strong interest in maintaining an safe and orderly school environment.

If you have questions this summary or related issues please contact your regular Hicks Morley lawyer.

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