A Tale of Two Cameras: Sex and Surveillance in R. v. Jarvis

126 CRIMINAL REPORTS 52 C.R. (7th) A Tale of Two Cameras: Sex and Surveillance in R. v. Jarvis1 Lisa M. Kelly To photograph is to appropriate the thing photographed. It means putting oneself into a certain relation to the world that feels like knowledge — and, therefore, like power. — Susan Sontag, “Photography”, New York Review of Books (1973) Introduction At the center of R. v. Jarvis was a pen camera. Developed as an espionage device at a time when cameras were clunky and conspicuous, Mr. Jarvis deployed his secret camera to surreptitiously record students at the London high school where he taught. Mr. Jarvis filmed students without their knowledge in hallways and classrooms, focusing on their bodies and breasts in particular.2 Mr. Jarvis’s pen was not the only camera recording students, however. “There were 24-hour surveillance security cameras in and around the school, which were clearly visible to everyone,” the Ontario Court of Appeal noted. “There was also signage regarding the 24-hour surveillance.”3 The students were on notice that they were already under constant video surveillance in many of the areas in which Mr. Jarvis filmed 1 Lisa M. Kelly, Assistant Professor, Queen’s University, Faculty of Law. I thank Dennis Beeby for excellent research assistance and especially Rachel Oster for excellent assistance and insightful analysis on very short timelines. I gratefully acknowledge funding from the Social Sciences and Humanities Research Council for a project entitled “Police Powers in Canadian Schools.” 2 R v Jarvis, 2019 SCC 10, reported ante p.1 [Jarvis]. 3 R v Jarvis, 2017 ONCA 778 at para 10, 139 OR (3d) 754. For criticism of the Ontario Court of Appeal’s view that there was no reasonable expectation of privacy and an argument for the Supreme Court to use its s. 8 “totality of circumstances” privacy analysis for the voyeurism provision, see Ryan Mullins, “R v. Jarvis: An Argument for a single Reasonable Expectation of Privacy Framework” (2018) 41 Man. L.J. 77. A Tale of Two Cameras: Sex and Surveillance in R. v. Jarvis 127 them. To convict Mr. Jarvis of voyeurism, the Crown had to prove that he had recorded the students in circumstances that gave rise to a “reasonable expectation of privacy”.4 To do so, the Crown had to overcome what Helen Nissenbaum calls the “problem of privacy in public.”5 If the students already knew they were being recorded, did they enjoy a reasonable expectation of privacy against Mr. Jarvis’s filming? And if so, what distinguished their privacy interests in relation to these two sets of cameras? I argue that the cameras of Jarvis were mutually constitutive of each other. Each gained its legal significance for student privacy through its opposition to the other. Where the pen camera came to stand for the personal and prurient interests of Mr. Jarvis, the surveillance cameras emerged as safety-enhancing devices that advanced the institutional purpose of educating young people. In particular, the majority in Jarvis viewed the surveillance cameras as protecting students in their school environment. Both in terms of what they recorded and by whom those recordings could be viewed, the Court concluded that the surveillance cameras contributed to “a safe and secure learning environment for students.”6 The security cameras could not be manually manipulated, did not capture audio, and were not available to teachers for personal use. Unlike Mr. Jarvis’s illegitimate pen camera, the surveillance cameras served “legitimate education- [and] safety-related purpose[s].”7 As a consequence, they would not attract privacy claims. Chief Justice Wagner concluded for the majority: Given ordinary expectations regarding video surveillance in places such as schools, the students would have reasonably expected that they would be captured incidentally by security cameras in various locations at the school and that this footage of them could be viewed or reviewed by authorized persons for purposes related to safety and the protection of property.8 4 Criminal Code, RSC 1985, c C-46, s. 162(1). 5 Helen Nissenbaum, “Protecting Privacy in an Information Age: The Problem of Privacy in Public” (1998) 17: 5-6 Law & Phil 559. 6 Jarvis, supra note 1 at para. 76. 7 Ibid. at para. 85. 8 Ibid. at para. 76. 128 CRIMINAL REPORTS 52 C.R. (7th) The students would not enjoy freestanding control over their images at school, but instead would reasonably expect to be recorded for legitimate security purposes. Mr. Jarvis inverted the usual teacher-as-protector-and-enforcer paradigm by using his pen camera for “purely private purposes” in order to satisfy his “own sexual gratification” and “prurient interests.”9 In taking “closeup” images of female students, the Justices found that he had violated the students’ “sexual integrity” and “autonomy to control [their] personal visual information.”10 As such, he could not claim that their reduced privacy from legitimate surveillance extended to his voyeuristic conduct.11 My aim in interrogating the cameras of Jarvis is not to develop a doctrinal argument for why students do or do not enjoy a reasonable expectation of privacy against surveillance at school. Given the reduced privacy the Court has already applied in the context of personal searches by school officials, this would be an uphill battle.12 Instead, my goal is to trouble the easy distinction the Court drew between sex and surveillance. In doing so, Jarvis continued a long tradition of privacy law being exceptionally concerned with shielding the sexual body from view.13 As the Chief Justice wrote, “privacy with respect to intimate parts of our bodies and information about our sexual selves is particularly sacrosanct.”14 In this case, the sexual nature of Mr. Jarvis’s recording triggered his potential culpability for voyeurism. In the Court’s hands, it also served as a 9 Ibid. at paras.76; 85. 10 Ibid. at para. 128. 11 Ibid. at para. 90 (A student at school “certainly expects that she will not be singled out by [a] teacher and made the subject of a secretive, minutes-long recording or series of recordings focusing on her body.”) 12 SeeR v M(MR), [1998] 3 SCR 393, 166 DLR (4th) 261 [M(MR)] (applying a reduced expectation of privacy at school and upholding warrantless searches by school officials where they have a reasonable belief that a student has breached a school rule and the search would uncover evidence of that breach). 13 See, e.g. Jeannie Suk, “Is Privacy a Woman?” 2009 97:2 Geo L J 485 (tracing how modern Anglo-American jurisprudence has frequently used the woman — “the lady of the house in her bath, the lady at home receiving callers, the battered wife in the disordered home” — as the fulcrum around which to regulate legal interventions in the home). 14 Jarvis, supra note 1 at para. 82. A Tale of Two Cameras: Sex and Surveillance in R. v. Jarvis 129 means of distinguishing, normalizing, and legitimating other competing cameras at school. The stakes of both cameras, I argue, demanded more. The Surveillance School Many students across Canada attend schools where they are recorded each day by surveillance technology. Security camera systems vary across schools. Some use strategically placed cameras in limited locations across the school premises; other schools now have scores of cameras monitoring all common areas including classrooms, hallways, gymnasia, and cafeterias.15 In the United States, some schools have gone as far as installing surveillance technology in portable computer equipment that can record students off-campus and in their homes.16 A plethora of other devices including metal detectors, facial recognition software, radio-frequency identification microchips, internet tracking, website blocking, and audio recording are certainly not used by all schools but are increasingly common in many.17 Together, these devices represent, as Emmeline Taylor writes, “a shift from human-centered strategies of discipline and control to technological mechanisms.”18 15 See Emmeline Taylor, “The rise of the surveillance school” in Kirstie Ball, Kevin Haggerty & David Lyon, eds, Routledge Handbook of Surveillance Studies (New York: Routledge, 2012) 225 at 225-226. 16 See Daniel Nasaw, “US school district spied on students through webcams, court told: Pennsylvania district accused of using remote-control laptops to photograph teenage students at home without their knowledge” The Guardian (19 February 2010), online: <https://www.theguardian.com/world/2010/feb/19/ schools-spiedon-students-webcams>; Warren Richey, “Did school use laptops to spy on students? Feds won’t press charges” The Christian Science Monitor (17 August 2010), online: <https://www.csmonitor.com/USA/Justice/2010/0817/ Did-school-use-laptops-to-spy-on-students-Fedswon-t-press-charges> (“The computer programs that enabled the monitoring were justified as an antitheft program. But students and their parents were not told of the monitoring capability, and the school district had no guidelines on who would be monitored and under what conditions.”) 17 For a discussion of such technologies in various facets of daily life including Canadian schools, see Colin J. Bennett, Kevin D. Haggerty, David Lyon, & Valerie Steeves, Transparent Lives: Surveillance in Canada (Edmonton: Athabasca University Press, 2014). 18 Taylor, supra note 14. 130 CRIMINAL REPORTS 52 C.R. (7th) The Supreme Court in Jarvis easily dispensed with the question of whether such surveillance technologies raise privacy concerns for students. “[O]rdinary expectations” about surveillance translated into a common-sense conclusion that the “students would have reasonably expected that they would be captured incidentally” by cameras at school.19 The Court treated surveillance as part of a social contract between teachers and students. The Chief Justice suggested that students have an “understanding that school will be a safe environment and that teachers will work to keep it that way . . .”20 Surveillance cameras served this role. This view of surveillance forming part of a safety compact between students and teachers ignores the fact that students are compelled by law to attend school and to submit to the surveillance and search regimes therein. Like all liberal social contract theories, students do not in fact have an opportunity to contract about their school lives. Moreover, as Lisa Austin has argued, the Court’s “reasonable expectation” approach to privacy lacks independent criteria for judgment outside social convention. Once students “come to expect, or even accept, wide-spread surveillance then we can no longer say that such surveillance involves a loss of privacy.”21 This anodyne portrayal of security cameras as simply promoting order and safety also conflates the historical role of teachers as enforcers of school rules with their current role as often enforcers of criminal law.22 This is true of surveillance. Surveillance cameras produce images that can be used to uncover, investigate, refute, or prove what happened.23 As Susan Sontag wrote, “photographs furnish evidence. Something we hear 19 Jarvis, supra note 1 at para. 76. 20 Ibid. at para. 85. 21 Lisa Austin, “Privacy and the Question of Technology” (2003) 22:2 L & Phil 119. 22 See A Wayne MacKay, “Don’t Mind Me, I’m from the R.C.M.P.: R. v. M. (M.R.) — Another Brick in the Wall Between Students and Their Rights” (1997) 7 CR (5th) 24 (arguing that in the context of school searches “the vital question is what a student’s reasonable expectation of privacy is when the student is being searched for a violation of the criminal law.”) 23 For a discussion of the use of images as products of surveillance as evidence in criminal trials, see G. Edmond & M. San Roque, “Justicia’s Gaze: Surveillance, Evidence and the Criminal Trial” (2013)11 Surv. & Soc. 252. A Tale of Two Cameras: Sex and Surveillance in R. v. Jarvis 131 about, but doubt, seems proven when we’re shown a photograph of it. In one version of its utility, the camera record incriminates.”24 Today, video surveillance of a student pushing another student or allegedly buying or selling drugs can easily become grounds for a zero-tolerance suspension or expulsion or evidence to support a criminal charge.25 The Unsafe School How is it that the students of Jarvis came to obviously expect such surveillance in the eyes of the Court? Over the past four decades, a view of schools as unsafe and therefore in need of close monitoring has gained remarkable power. In his history of Ontario schooling, R. D. Gidney notes that by the 1980s and early 1990s, school safety had come to dominate public debates over education. With the exception of concerns about quality, no other education issue received the same media attention or review by school federations and districts as school safety.26 National media coverage of serious incidents of school-based violence sparked fears among families, police, lawmakers and school officials about student safety.27 The Royal Commission on Learning reported in 1993, “[t]he problem of violence in the schools has been raised at our hearings more than any other issue.”28 Even as criminologists refuted claims of rising youth crime in Canada at the turn of the twenty-first-century, fears about school safety continued to shape law and policy in ways that matter today.29 In particular, Ameri24 Susan Sontag, On Photography (1977). 25 For a discussion of the rise of zero tolerance policies in Ontario and the more recent shift to progressive disciplines, see Jane Bailey, “From “Zero Tolerance” to “Safe and Accepting”: Surveillance and Equality in the Evolution of Ontario Education Law and Policy” (2017) 26:2 Educ & LJ 147; 26 R D Gidney, From Hope to Harris: The Reshaping of Ontario’s Schools, (Toronto: University of Toronto Press, 1999) at 180-181. 27 See Murray Campbell et al, “Shakedowns in the schoolyard: Youth crime may not be rising but bullies are getting more sophisticated and brutal” The Global and Mail (4 October 1997) A1. 28 Cited in Gidney, supra note 25 at 181. 29 See, e.g., Peter J. Carrington, “Has Violent Youth Crime Increased? Comment on Corrado and Markwart” (1995) 37 Cdn. J. Crim. 61; Peter J. Carrington, “Changes of Police Charging of Young Offenders in Ontario and Sas- 132 CRIMINAL REPORTS 52 C.R. (7th) can political preoccupations with school safety reverberated north. A spate of highly publicized school shootings in the 1990s fuelled political will to enact zero tolerance discipline policies and increase police presence at U.S. schools.30 In 1994, the Clinton Administration passed the Gun Free Schools Act requiring any state that received federal funding to introduce laws that would require schools to expel, for at least one year, any student found to have brought a weapon to school.31 In 1999, the U.S. Department of Justice began offering federal grants for School Resource Officer (SRO) programs.32 In political and legal discourse, schools were increasingly viewed as dangerous places where strict discipline policies and a police presence were necessary to protect students from one another. These institutional responses to combat school danger eventually landed in Canada. In 2000, Premier Mike Harris of Ontario introduced the Safe Schools Act, which mandated automatic suspensions or expulsions for certain breaches of school rules.33 Although Ontario’s Ministry of Education has since amended the Education Act to embrace “progressive discipline,” some conduct such as possessing a weapon or giving alcohol or cannabis to a minor still leads to an automatic suspension.34 In 2008, katchewan after 1984” (1998) 40 Cdn. J. Crim. 153; Peter J. Carrington, “Trends in Youth Crime in Canada, 1977–1996” (1999) 41 Cdn. J. Crim. 1; Anthony N. Doob & Jane B. Sprott, “Youth Justice in Canada” (2004) 31 Youth Crime & Youth Justice: Comp. & Cross-Nat. Persp. 185. 30 See William Lyons & Julie Drew, Punishing Schools: Fear and citizenship in American public education (Ann Arbor, Michigan: University of Michigan Press, 2006). 31 See Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (New York: Oxford University Press, 2007), 215–220. 32 See Na Chongmin & Denise C. Gottfredson, “Police Officers in Schools: Effects on School Crime and the Processing of Offending Behaviors” (2011) Justice Quarterly 1. 33 Education Act, R.S.O. 1990, c. E.2, as amended by S.O. 2000, c. 12; See Richard Mackie, “Harris cracks down on student misconduct” Globe and Mail (21 March 2000), online: <https://www.theglobeandmail.com/news/national/ harriscracksdownonstudentmisconduct/article1037991/>. 34 For a discussion of the rise of zero tolerance policies in Ontario and the more recent shift to progressive discipline, see Jane Bailey, “From ‘Zero Tolerance’ to A Tale of Two Cameras: Sex and Surveillance in R. v. Jarvis 133 Toronto also became the first district in Canada to introduce an SRO program, a year after the murder of fifteen-year-old Jordan Manners inside a Toronto school.35 Although Toronto has since disbanded its SRO program after families and community groups argued that it intimidated and over-policed students, particularly students of colour, other Canadian cities have retained their programs.36 This includes the Thames Valley School District in London where Mr. Jarvis taught.37 Reduced Privacy at the Unsafe School This vision of schools as unsafe shaped the legal landscape of student privacy that led up to Jarvis. Some education scholars had tepidly forecast that the Charter would usher in an era of greater judicial intervention in school administration. In the case of school safety and discipline, that prophecy largely failed to come to pass.38 In 1998, the Supreme Court in M.R.M. addressed for the first time the section 8 Charter privacy interests of students at school.39 At issue in the case was the legality of a search conducted by a junior high school viceprincipal with a police officer present.40 The threshold question in M.R.M. was whether the accused student enjoyed a reasonable expectation of privacy in his person at school. If not, the “search” would not ‘Safe and Accepting’: Surveillance and Equality in the Evolution of Ontario Education Law and Policy, 26 Education Law Journal 147 (2017). 35 L. Brown & K. Rushowy, “Jordan Manners shooting death led to school safety changes” Toronto Star (20 May 2011). 36 See S. Nasser, “Canada’s largest school board votes to end armed police presence in schools” CBC News (22 November 2017), online: <www.cbc.ca/news/canada/toronto/school-resource-officers-toronto-board-police-1.4415064>. 37 Dale Carruthers, “London area’s two biggest school boards won’t nix police officer program” The London Free Press (4 December 2017). 38 Greg Dickinson, “School Searches and Student Rights under the Charter: Old Wine in New Bottles” in Michael E Manley-Casimir & Kristen Manley-Casimir, eds, The Courts, the Charter and the Schools: The Impact of the Charter of Rights and Freedoms on Educational Policy and Practice, 1982–2007 (Toronto: University of Toronto Press, 2009) 155 at 159. 39 M(MR), supra note 11. 40 Ibid. 134 CRIMINAL REPORTS 52 C.R. (7th) attract section 8 scrutiny.41 The Court framed its privacy analysis as an exercise in balancing conflicting interests. On the one hand, the Justices warned, schools are increasingly besieged places. Justice Cory wrote: Schools today are faced with extremely difficult problems which were unimaginable a generation ago. Dangerous weapons are appearing in schools with increasing frequency. There is as well the all too frequent presence at schools of illicit drugs. These weapons and drugs create problems that are grave and urgent.42 Justice Cory did not cite any evidence of these dangerous school conditions.43 Once depicted this way, however, the Court unsurprisingly held that students enjoy reduced expectations of privacy from searches at school. In language that rings familiar to the surveillance context in Jarvis, Justice Cory held that because students know that their teachers are responsible for ensuring safety, “it would not be reasonable for a student to expect to be free from such searches” at school.44 Ten years later, a majority in A.M. held that a student’s section 8 Charter rights had been violated by a warrantless, roving sniffer-dog search of his backpack.45 In that case, police had taken up a standing invitation from the school principal and were acting without any specific suspicion. Unlike Jarvis, A.M. expressly concerned police powers at school. 41 In Hunter v. Southam Southam, [1984] 2 SCR 145, 11 DLR (4th) 641, the Court followed the approach of the U.S. Supreme Court in holding that section 8 “protects people and not places.” A warrantless search where a person enjoyed a “reasonable expectation of privacy” would prima facie violate section 8. Chief Justice Dickson defined “reasonableness” in this context as the outcome of a balancing exercise. Judges must assess “whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.” 42 M(MR), supra note 11 at para. 3. 43 As both Don Stuart and Greg Dickinson have separately observed, the Court did not cite any specific evidentiary findings. See Dickinson, supra note 37 at 171; Don Stuart, “The Unfortunate Dilution of Section 8 Protection: Some Teeth Remain” (1999) 25: 1 Queen’s LJ 65 at 79. 44 M(MR), supra note 11 at para 33. 45 R v AM, 2008 SCC 19, 1 SCR 569. A Tale of Two Cameras: Sex and Surveillance in R. v. Jarvis 135 In A.M., two dissenting justices would have gone as far as holding that A.M. did not have any subjective expectation of privacy against warrantless searches by police with sniffer dogs, not simply school officials.46 In their dissent, Justices Rothstein and Deschamps argued that because the student was aware of his school’s zero-tolerance drug policy and the fact that the policy might be enforced with sniffer dogs, he had no expectation of privacy.47 They justified this sweeping deference to schools and police as necessary to promote education. “Schools are places of education,” they wrote, “but will that education consist of enlightenment for the betterment both of students and of our free and democratic society, or will schools become places where students become ensnared by drugs, gangs, violence and anti-social behaviour?”48 The dissenters flipped the usual section 8 balance in the school environment. Rather than treating democratic rights and state intrusion as competing values, they cast the two as coterminous. Sniffer dogs were necessary to help school officials weed out (pun intended) concealed drugs that directly threatened the whole educational enterprise. The Court in Jarvis had to reconcile these cases of reduced student privacy at school with its finding that Mr. Jarvis filmed students in circumstances that gave rise to a reasonable expectation of privacy. The Court did so by suggesting that the need to ensure safety at school simultaneously reduces and enhances student privacy. In the case of safety-enhancing measures such as searches or surveillance, student privacy will partly yield to the legitimate work of school officials. But in view of this concession to safety, students should expect their bodily privacy to be more zealously guarded from rogue teachers who step outside their professional roles to satisfy their own personal interests. The Chief Justice wrote: Rather, 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 integ- 46 Ibid. at para. 146. 47 Ibid. at para. 129. 48 Ibid. at para. 146. 136 CRIMINAL REPORTS 52 C.R. (7th) rity — when invading that privacy is not necessary to maintain a safe school environment.49 In other words, once having been deprived of full legal power to resist the intrusions of school officials, that vulnerability should not be further exploited by a school official acting contrary to the purpose of the original concession. Conclusion How the Supreme Court framed the cameras of Jarvis tells us much about the visions of school privacy alive in Canadian law today. As Chief Justice Wagner repeated throughout his judgment, the Court’s privacy analysis is normative and not simply descriptive. “Whether a person reasonably expects privacy is necessarily a normative question that is to be answered in light of the norms of conduct in our society,” he wrote.50 Privacy as a legal claim flows from social conventions about how the world ought to be. In other words, it is both material and ideological. Bathroom stalls really do occlude view, locked doors impede entry, and passwords can protect online files. But privacy as a legal claim — as a right or interest that one can use to mobilize or resist state power — is also political. It is saturated with ideological commitments about sex, domesticity, autonomy, class, and race.51 Ideas of school, whether as safe or dangerous, disciplined or democratic, conformist or egalitarian, shape how lawmakers, courts, and school officials regulate student privacy. 49 Jarvis, supra note 1 at para. 68. 50 Jarvis, supra note 1 at para. 68 (emphasis in original). 51 For a seminal and trenchant feminist critique of privacy and the public/private divide as enforcing an ideology of male dominance in law and life, see Catharine A. MacKinnon, “Abortion: On Public and Private” in Toward a Feminist Theory of the State; See also Jeannie Suk, At Home in the Law: How the Domestic Violence Revolution is Transforming Privacy (New Haven, CT: Yale University Press, 2009) (tracing how the idea of home and its legal privacy has has radically changed over the past forty years, largely in response to the work of feminist reformers aiming to better protect women from domestic violence); Khiara M. Bridges, The Poverty of Privacy Rights (Stanford, CA: Stanford University Press, 2017) (arguing that poor mothers in the United States have been dispossessed of privacy by government such that they are not bearers of privacy rights). A Tale of Two Cameras: Sex and Surveillance in R. v. Jarvis 137 The open-textured nature of the “reasonable expectation of privacy” standard requires judges to exercise significant discretion as they weigh and balance conflicting interests and factors.52 Standards such as this one call on courts to consider “all relevant factors with an eye to the underlying purposes or background principles or policies at stake.”53 In the context of schools, there is a need, as Wayne MacKay argues, for both “an ordered learning environment” and “for students to learn the scope and limits of rights in the ‘free and democratic society’ of Canada.”54 As ever, the real question is where to strike the balance. However, if one cannot even see the competing interests or considerations at stake, the balancing act is over before it has begun. It is worth returning, then, to the cameras of Jarvis. If to photograph something is to appropriate it, as Sontag argued, it bears considering how the students of Jarvis were appropriated twice. In the current moment in which sexual gazes, acts, and violations are the subject of intense scrutiny, it is perhaps easier to see — and to contest — the stakes of a teacher capturing images of students in the way that Mr. Jarvis did. It remains to be seen whether the multi-factor test adopted in Jarvis will provide guidance in cases outside this specific context. I fear, like Steve Coughlan in his preceding comment,55 that criminal voyeurism may for now resemble Justice Potter Stewart’s adage on pornography, “I’ll know it when I see it.”56 52 As I have argued elsewhere, such standards pose a phenomenological quan- dary for judges who are expected to provide legally certain answers to inherently uncertain questions. See Lisa M. Kelly, “The Work of Ideology in Canadian Legal Thought,” (2016) 74 S.C.L.R. (2d); see also Grant Huscroft, Bradley W. Miller, and Grégoire Webber, “Introduction” in Huscroft, Miller & Webber, eds., Proportionality and the Rule of Law: Rights, Justification, Reasoning (Cambridge: Cambridge University Press, 2014), (observing that notwithstanding the popularity and spread of proportionality across constitutional courts globally, it does not enjoy methodological consensus, nor does it guarantee consensus on substantive rights questions), at 1-2. 53 Kathleen Sullivan, “The Justices of Rules and Standards” (1992) 106:1 Harv L Rev 22 at 60. 54 A. Wayne MacKay, “Students as Second Class Citizens Under the Charter” 54 C.R. (3d) 390, at 390. 55 Above pp. 56 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964). 138 CRIMINAL REPORTS 52 C.R. (7th) Amidst this focus on the sexual gaze, surveillance at school can all too easily fade into an accepted background. But the seeing eyes of schools can have far-reaching consequences that are not captured by the simple faith that they promote safety or protect property. In school environments in which the lines between school and criminal accountability are increasingly blurred, the stakes are high for all involved and courts would do well to heed this reality.