A former London elementary school teacher, already convicted of secretly filming naked women in a school change room, has now been found guilty of producing and possessing child pornography.
Jamie Gardiner, 39, pleaded guilty in May to 16 counts of voyeurism in relation to an incident while he was a special education teacher at Ashley Oaks Public School. Gardiner admitted to placing a backpack with a thumb sized hole and a camera lens through the hole in a staff change room from 2011 until March 2015, after he was caught by a colleague. The backpack was left on the floor of the change room, angled to capture the genital or buttock area of female co-workers as they changed.
Among those secretly filmed on Gardiner's hidden camera was a 16-year-old co-op student assigned to his class.
At the London courthouse on Friday, Justice Marc Garson ruled that the two-minute-and-30-second video of the student, a minor under the law, did constitute child pornography.
"The context before me is that of a voyeur strategically and surreptitiously placing a camera in a manner intended to capture the images of the genital or anal region of females using the staff change room," stated Garson. "This is a far cry from a young female clad in a thong bikini on a public beach."
Defence lawyer Richard Braiden had argued that the video was not child pornography as it largely showed only the teen's buttocks, which isn't a sexual organ. He added that women socially wear thong bathing suits in public places.
Speaking outside of the courthouse, Braiden admitted he was disappointed, but not overly surprised by Garson's decision.
"We knew going into that argument that it was an uphill battle, that most of the case law was against us. But because it involved a mandatory minimum [sentence] we weren't just going to give up on it," said Braiden. "His Honour's decision was very well reasoned, it is probably in accord with most of the case law... I asked for a more restrictive interpretation, but admittedly, the case law supported his Honour and it seemed to me a very well reasoned decision. So I don't think there is going to be any movement for an appeal against the conviction."
Both making and possessing child pornography come with a mandatory minimum sentence of one year in jail. But there is room to challenge that mandatory sentence, according to Braiden.
"The charter has a provision that Canadians are supposed to be saved from cruel and unusual punishment. Some of the higher courts including the Supreme Court of Canada said some of the mandatory minimums that has been brought in over the past number of years are not appropriate," said Braiden. "In this case we have someone who has no record, it's a two and a half minute video clip of one single person. Whether that warrants a year in jail is something that I think is worth being considered by his honour, if my client instructs me to pursue that."
Gardiner will be back in court July 17 when a sentencing date is expected to be set. Victim impact statements will be heard on August 14.