In R v. Cole, the Ontario Court of Appeal considered the lawfulness of a several searches of a teacher’s laptop, after the discovery of sexually explicit photographs of a grade 10 student. The Court held that the warrantless police searches of the laptop were unconstitutional, but that searches of the laptop by school officials and employees, and their copying of the incriminating photos onto a disc, were constitutional.
A technician conducting maintenance on the computer of the appellant, a teacher, discovered explicit photographs of a girl he thought was a student at the school. He took a screen shot of the image and brought it to the attention of the principal. The technician again accessed the appellant’s hard drive to show the principal the image. Copies of the image were burned to a disk. The principle asked the appellant to turn over his computer and a search of the laptop’s hard drive and browsing history was conducted. The browsing history revealed a large number of pornographic images. Copies of his browsing history were also saved to a disc. The principle turned over the two disks and the laptop to police for investigation. An Officer from the Cyber Crimes Unit looked at the disks to assess the images. As a result of their contents, the appellant was arrested. Subsequently, and without a warrant, the laptop was sent for analysis. The trial judge found that searches conducted by the technician, principle and school officials of the computer did not violate the appellant’s S. 8 Charter rights, since the charter did not apply to the School Board; however, the appellant’s S. 8 Charter rights had been violated by the warrantless search and seizure by the police and excluded the evidence under s. 24(2) of the Charter. This decision was reversed on appeal to the Superior Court of Justice and sent back for re-trial after the appeal judge found that the teacher had no reasonable expectation of privacy in the laptop.
Karakatsanis J.A., writing for the Court of Appeal, assuming that the Charter did apply to the school board, found that the appellant had a "modified" reasonable expectation of privacy in the contents of the laptop. The appellant did not have a reasonable expectation of privacy in relation to his employer’s access to for the purposes of maintaining the computer and the school’s network, and knew that his employer could access his laptop for these purposes. Accordingly, the technician, principal and school officials did not breach s. 8 of the Charter by accessing the laptop.
However, the appellant had a reasonable expectation of privacy from state intrusion on the contents of his personal files and hard drive. Search of the laptop and discs containing temporary Internet files conducted by the police were unreasonable and violated the appellant’s S.8 Charter rights. The fact that school officials had delivered the laptop to the police did not affect the continuing privacy expectations of the appellant. Similarly, the School Board did not have authority to authorize the search. There was no evidence that exigent circumstances required the police to act without first obtaining a warrant. As a result of this charter breach, the court concluded that this evidence should be excluded under S. 24(2) of the Charter. In contrast, the discs containing photographs given to the police by school officials were admissible. Looking at the pictures was not considered to be a police search or seizure. The appellant could not reasonable have a continued expectation of privacy in relation to pictures accessed through the school’s network.
The court ordered a re-trial of the matter.
March 22, 2011
Link to Decision
Heather Palin
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