R v Jarvis, 2017 ONCA 778 - A Case of Distinctions

The accused in this case was charged with voyeurism contrary to s. 162(1)(c) of the Criminal Code. These charges were laid as a result of the accused, a teacher, using a pen camera to film his students. He was acquitted at trial and that acquittal was upheld by the Ontario Court of Appeal (ONCA). In the process of doing so, the ONCA made very important distinctions touching on three different legal concepts.

Searches of Devices in Police Possession and Searches Incident to Arrest

The first distinction is the important difference between the ability of an officer to search an electronic device, such as a cell phone, on an accused person if it is found with him/her on arrest. R v Fearon, 2014 SCC 77 was the Supreme Court Case that determined police officers were entitled to search cell phones incident to arrest, so long certain criteria were met, including a limited scope for the search and if there is an appropriate purpose.

That said, both the trial judge and the ONCA emphasized a very important distinction between the power to search incident to arrest and cursory searches of electronic devices. Doing a cursory search of an electronic device without a warrant and outside of the context of a search incident to arrest can constitute a breach of s. 8 of the Charter.

More importantly, Justice Feldman made comments about the trial judge's findings on whether the evidence should be excluded as a result of the breach. The trial judge determined that following police policy to do a cursory search of electronic devices without a warrant was a reasonable misunderstanding of the law. Thus the seriousness of the breach was minor. At the Court of Appeal it was found that the law on this issue was clear and regardless of that, the officer acted in violation of the law. Additionally, the officer knew that he did not have enough evidence to arrest or get a warrant, so the device was searched to get enough evidence for a warrant. This was also part of London Police policy. As a result of that, it could not be found that the officer was acting in good faith. The relevant paragraphs are copied below:

72] As there was no conflicting jurisprudence, the trial judge’s characterization of Detective Howe’s understanding of the law and his basis for conducting the cursory search were without foundation. Detective Howe testified that he was relying on the case of Polius, which involved the search of a cell-phone incident to arrest. However, he knew that he had no reasonable and probable grounds for arrest, or for a warrant. Any search he were to conduct would not be incident to arrest. And he believed he could go no further in the investigation without searching the camera to see the nature of the photographs.

[73] These circumstances can be compared with those in Cole, where the Supreme Court found that at the time of the police search of the teacher’s school-board owned computer, the law governing an employee’s privacy interest in a work computer remained unsettled. In that case, the police officer believed he could search the computer without a warrant. The Supreme Court found his belief to be erroneous but understandable. In this case, Detective Howe did not believe he could search the camera pen without a warrant but proceeded to do so regardless.

[74] In my view, based on this evidence, the trial judge had no basis to find that the police acted in good faith by conducting their initial search of the camera. The police service in London had developed its own process of preliminary cursory searches for the sole purpose of obtaining evidence that could form the basis to seek judicial authorization for a search warrant or to make an arrest. This was a clear violation of s. 8 of the Charter. The first Grant factor clearly favours exclusion of the evidence.

It is important to challenge police policy when it results in the violation of rights. Accused persons are not entitled to rely on a misunderstanding of the law. When the law is clear, officers should not be entitled to do so either.

Reasonable Expectation of Privacy and Surreptitious Recordings

Justice Feldman found that the trial judge erred by determining the students had a reasonable expectation of privacy because they had been surreptitiously recorded. The trial judge stated there are times when students would not have a reasonable expectation of privacy, for example when they are captured by surveillance cameras. In this case, however, the recordings were long and done secretly, thus the students had an expectation of privacy in not being secretly recorded for long periods of time.

This was determined to be an error because it conflated two separate elements of the offence of voyeurism. It is assumed as a principal of statutory interpretation that all words must be given meaning and that all words were put into statutes for a reason. Section 162(1)(c) of the Criminal Code is worded such that the surreptitious nature of the recordings is one element and the circumstances where there is an expectation of privacy was another. To suggest that the expectation arises because the recordings were surreptitious, would render the reasonable expectation of privacy element meaningless. As a result, the trial judge was incorrect in using the surreptitious nature of the recordings as proof that there was a reasonable expectation of privacy and the accused's acquittal was upheld.

Circumstantial Evidence vs Speculation

The final distinction was made between circumstantial evidence and speculation. It is a long standing rule that convictions based on circumstantial evidence must be the only rational or reasonable conclusion. That said, trial judges cannot engage in speculation with regard to what may be innocent explanations for the actions of the accused. The error of speculation was also recently raised in R v Villaroman, 2016 SCC 33, where the Supreme Court of Canada overturned the decision of the Alberta Court of Appeal to acquit an accused.

In Jarvis, the trial judge identified that there were be other inferences that arose from the videos, but did not point out what those inferences were and how they arose from the evidence. This is problematic, because it is speculation. Even though inferences about innocence do not need to be based on proven facts, the inferences a trial judge makes must be reasonable when considered with the circumstantial evidence. This is very different from a trial judge creating hypothetical explanations that do not rationally arise from the evidence that comes out in court. To find a reasonable doubt, neither an accused nor a trial judge can rely on inferences that are "imaginary or frivolous". (Villaroman at para 50) The example provided by Justice Feldman is found in paragraphs 53-54 of the decision:

[53] This was an overwhelming case of videos focused on young women’s breasts and cleavage. The trial judge made two errors of law in his analysis. First, he erred by suggesting in his interpretation of the sexual purpose provision that, taken on its own, the lack of nudity or sexually suggestive clothing or poses could derogate from the sexual purpose of the videos that were focused on breasts and cleavage. Subsection (b) of the offence of voyeurism specifically makes it an offence to surreptitiously observe or visually record a person who is nude. Subsection (c) requires only that the observation or recording be “done for a sexual purpose”.

[54] Second, he did not identify any reasonable inference other than that the purpose of the videos was sexual. In R. v. Taylor, 2015 ONCJ 449, the accused took pictures of women’s buttocks while they were sunbathing in thong bathing suits on a beach. When considering the sexual purpose component of the offence of voyeurism, the trial judge concluded that he could not discount the possibility that the pictures were taken for aesthetic reasons as some artists do. In this case, one would have to speculate to find any such inference arising from the evidence or lack of evidence on this record.

When defending a criminal case, it is important to recall and understand distinctions in criminal law concepts. This can make the difference in the success of any criminal defence strategy.

Note: Comments made by authors are not intended to be and should not be regarded as legal advice. Their views, opinions and comments do not consider all material facts or circumstances relevant to your case. They are intended for use as an aid to understanding legal concepts only and are not a substitute for comprehensive legal advice from a lawyer.

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