Criminal Law

SCC ruling in voyeurism case goes beyond Parliament's intent: Zita

By AdvocateDaily.com Staff

A Supreme Court of Canada (SCC) decision in a voyeurism case involving a teacher “opens the floodgates as to what could be considered criminal behaviour,” Toronto criminal lawyer Jessica Zita tells CBC News.

Zita, an associate with Hicks Adams LLP, tells the broadcaster that the SCC ruling on the reasonable expectation of privacy goes beyond the scope of what Parliament intended.

“In criminal law, there is a principle known as the fair notice doctrine, where everyone needs to know the conduct that would be considered punishable,” Zita tells the CBC.

“In this case, based on what the Supreme Court said … we don’t know what that could be anymore. If I accidentally take a photo of someone and someone else appears in the background, and they are bent over or doing something like that, and it seemed to be for a sexual purpose, this statement by the Supreme Court could mean that I’ve infringed upon their reasonable expectation of privacy.

“But really, they are in a public setting, and Parliament didn’t intend for that. So it will be interesting to see how this plays out. I think the concern is that we’re in dangerous territory now,” Zita says.

The nation’s top court ruled that a high school teacher, who used a pen camera to surreptitiously take videos of female students, is guilty of voyeurism, The Canadian Press (CP) reports. The Ontario man was charged after the discovery of more than two dozen videos on his pen, many of which focused on the chests and cleavage area of students at the London, Ont., school, CP reports.

The man made the recordings during 2010 and 2011 in different locations around the school, including hallways, classrooms, the cafeteria, staff offices, and outside the building, CP says.

The videos range from six seconds in length to just over two-and-a-half minutes, often involving a conversation between the teacher and the student. In most, the camera is on the girl's face but also focuses for a considerable amount of time on her chest area.

CP reports that the man was acquitted when the trial judge found that while the students had a reasonable expectation of privacy, it was not clear the videos were taken for a sexual purpose.

The Ontario Court of Appeal dismissed the Crown's challenge of the ruling, although for different reasons.

A majority of the appeal court concluded the videos were taken for a sexual purpose, noting at least five featured close-up, lengthy views of cleavage from angles both straight on and from above. However, the court said the students should not have an expectation of privacy in areas of the school where they congregate or where classes are taught, CP reports.

One of the appeal court judges dissented, opening the door to a hearing before the Supreme Court to decide the privacy considerations in the case, as it was no longer in dispute that the teacher made the recordings for a sexual reason. It marked the first time the high court had examined the Criminal Code offence of voyeurism, which took effect in 2005.

“We’re talking about schoolgirls who are being filmed by a teacher with a pen. That’s subject matter that makes the public uncomfortable and makes the public uneasy," Zita tells the CBC. "... I think that they (the Crown) felt that discomfort, and they felt the unease, and the public unrest in the decision in the lower courts, and they needed to explore that.”

All nine judges of the high court agreed the man should be found guilty. However, they provided two sets of reasons in coming to that unanimous conclusion, CP reports.

In writing for a majority, Chief Justice Richard Wagner pointed out that federal legislators created the new voyeurism offence due to concerns about the potential for rapidly evolving technology, such as tiny cameras, to be abused for the secret viewing or recording of people for sexual purposes, and in ways that involve a serious breach of privacy.

He noted that the students were unaware they were being recorded, and a school board policy in effect at the time prohibited the teacher from making such videos, the national news agency reports.

Wagner said a student attending class, walking down a school hallway or speaking to her teacher certainly expects she will not be singled out by the instructor and made the subject of a secretive, minutes-long recording focusing on her body.

“The explicit focus of the videos on the bodies of the students recorded, including their breasts, leaves me in no doubt that the videos were made in violation of the students' reasonable expectations of privacy,'' he wrote in the decision.

However, Zita tells the CBC that the “prevalent” view among Ontario criminal defence lawyers is that the SCC decision on a reasonable expectation of privacy is "too broad."

“The problem we are facing here is that this ruling from the court … on what they found to be a reasonable expectation of privacy is beyond the scope of what was intended by Parliament. … In this case, the subjects were in a school that was known to be highly supervised with cameras and under surveillance at all times,” Zita tells the CBC. "Arguably, this was a very public setting.

“... Just looking at the facts of this case and how it came to be, as a woman and a human, I am comforted by (the SCC decision). But, my professional opinion as a lawyer differs significantly from that.”

- With files from The Canadian Press

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