A former London elementary school special education teacher found guilty of multiple child porn and voyeurism charges is considering challenging his potential jail sentence as “cruel and unusual punishment.”
Jamie Gardiner, 39, was convicted Friday of making child pornography and possessing child pornography for secretly videotaping a 16-year-old student in a staff change room at Ashley Oaks elementary school. Each count carries a mandatory penalty of one year in jail.
He pleaded guilty to 16 voyeurism charges last month involving the camera hidden in a backpack that was positioned on a bench to film female co-workers undressing.
His defence lawyer, Richard Braiden, indicated after Superior Court Marc Garson’s decision that his client is thinking about mounting the constitutional argument.
A flurry of mandatory minimum sentences came into effect as part of the previous federal Conservative government’s tough-on-crime initiatives. But recent court rulings have found some of the sentences inappropriate.
“In this case, we have someone who has no record. It is a 2½-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,” Braiden said.
“I’ve got to get instructions from him and tell him that I, myself, think the year mandatory minimum is too high and I think it’s vulnerable and can be successfully attacked.”
Gardiner was charged in March 2015 after a colleague spotted the red backpack with the thumb-sized hole in the change room, positioned to take shots of the women’s genital and buttock areas. It turned out that he had been collecting footage since 2011.
On Gardiner’s cellphone and a thumb drive were 29 videos of 16 victims. Some were staff, some were high school co-op students.
Gardiner was fired by the Thames Valley District school board shortly after his arrest.
While most of the footage was of adults, the contentious video was that of the 16 year old, a minor under the law. Gardiner was in charge of all the school’s high school hirings and placements.
It was left to Garson to decide Friday whether the video, which showed her naked from the waist down, met the legal definition of child pornography.
The video showed mostly buttocks and Garson ruled that it was child porn. He rejected Braiden’s argument that the videos were for “the thrill of the invasion of privacy and not sexual gratification,” which is why Gardiner pleaded guilty to a voyeurism charge in connection with the teen.
Garson said Gardiner knew what he was filming from his previous videos and knew that the co-op student was a minor because he hired her and set the pool schedule.
“The only reasonable inference that can be drawn from the manner in which these images were captured is that they were surreptitiously recorded for the sexual gratification and stimulation of the defendant,” Garson said.
“These recordings were not done openly, or with the knowledge of the victim or for some otherwise innocent purpose. These images are those of a partially clad child that exposes her anal region.”
By making the images and transferring them to his home computer, Gardiner was guilty, the judge said.