By: Steven Benmor, B.Sc., LL.B., Family Lawyer
Jurisdiction: Ontario (Canada)
When Carolyn Jamieson was criminally charged with assaulting 20 month old Leandra, she argued that the videotape should be excluded from evidence because of her constitutional right to privacy.
On April 30, 2004, the Ontario Superior Court of Justice, in R. v. Jamieson  O.J. No. 1780, dismissed the nanny’s application to exclude the videotape.
Leandra was born with multiple medical challenges. She underwent corrective surgery for a gap in her esophagus. It was not a complete success. When she was one year old, she had heart surgery. Leandra had hearing and vision limitations. She required twenty-four hour care. Several private agencies supplied nurses. Comcare was one of the agencies. Carolyn Jamieson was employed by Comcare. She became Leandra’s primary care nurse.
In March 2002, Leandra’s parents observed Leandra to have facial and other bruising. Some of her hair was found in the crib. Leandra was later found to have a fractured left leg and a swollen arm. Her parents were concerned and sought various medical explanations. They queried that the cause of these injuries might be physical abuse by one of Leandra’s nurses. They decided to install a ‘nanny camera’. The camera, which was concealed, was focused on the crib located in the living room.
Leandra’s parents were devastated when they watched the videotape recording Ms. Jamieson assaulting Leandra. They immediately called the police and took Leandra to the hospital.
In the end, the court ruled that the videotape will be admitted at trial because it is cogent evidence of the crime and is an accurate representation of the actual event. The court went on to say that because this is a very serious criminal charge of aggravated assault, the rights of the child have greater priority over the accused’s right to privacy and that excluding this evidence would bring the administration of justice into disrepute.