Child porn found on teacher's school-owned computer can be used against him: top court

The Globe and Mail

The Supreme Court of Canada is seen in Ottawa, Ont. Tuesday October 2, 2012. (Adrian Wyld/The Canadian Press)

Evidence of child pornography found on a high school teacher’s computer can be used against him notwithstanding his reasonable expectation that the contents of his computer were private, the Supreme Court of Canada ruled this morning.

The judgement breaks new ground on an issue that is exploding into the court system – the extent to which Internet information is private and beyond the reach of the law.

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The defendant – Richard Cole, a computer science teacher – was charged with possessing child pornography and fraudulently obtaining data from another computer hard drive after a school technician conducting routine surveillance discovered a file containing nude photographs of an underaged female student in Mr. Cole’s computer.

The court majority said that privacy rights in a workplace computer are important but can be overridden by the importance of the evidence.

“The evidence is highly reliable and probative physical evidence,” Mr. Justice Morris Fish wrote for the court in a 6-1 judgment. “The exclusion of the material would have a marked negative impact on the truth-seeking function of the criminal trial process.”

It ordered a new trial for Mr. Cole.

The student depicted in the photographs had sent them to another student by e-mail and Mr. Cole – whose responsibilities included patrolling students’ e-mails and files – had allegedly gained access to it and copied them into his own computer.

The school’s principal seized the computer, searched it more extensively and then provided it to police. Police investigators then searched the laptop and discs without a warrant.

The judge at Mr. Cole’s trial excluded the evidence as having been obtained from an unauthorized search. Partly because the school had informed employees that they could use their computers for private use, the judge concluded that Mr. Cole had a reasonable expectation of privacy, and the police ought therefore to have obtained a warrant before their search.

That decision was overturned on appeal by the Superior Court of Ontario.

However, the Ontario Court of Appeal later decided that police had breached Mr. Cole’s Charter rights by viewing his computer files without a warrant.

It said that employees have a reasonable expectation of privacy when they are using a computer provided by their employer and they confine themselves to work-related purposes.

“The police technique was intrusive in copying the entire contents of the hard drive,” the Ontario appeal court said. “The contents of the hard drive of a laptop may contain extremely personal information such as medical and financial reports, personal journals, e-mails and appointments.

In its decision today, the Supreme Court majority said that: “Computers that are reasonably used for personal purposes – whether found in the workplace or the home – contain information that is meaningful, intimate, and touching on the user’s biographical core.

“Canadians may therefore reasonably expect privacy in the information contained on these computers, at least where personal use is permitted or reasonably expected,” it said.

However, it said that the right to privacy must be tempered by the reality that employers who supply computers expect that they will not be used for prohibited purposes. It approved the notion that employers can legitimately conduct surveillance of how computers are being used.

“While workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely,” the court added.

It said that, in deciding whether computer evidence can be used in a criminal trial, judges must balance the privacy rights of the employee with the workplace policies of the particular employer and the seriousness of the alleged conduct.

In the Cole case, the court said, the school board had a right to examine the contents of Mr. Cole’s computer, but the police ought to have obtained a search warrant before they examined the material.

However, it said that the police investigator on the case made an honest mistake in not applying for a search warrant and that he would almost certainly have acquired one had he attempted to do so.

“The admission of the evidence would not bring the administration of justice into disrepute and therefore the evidence should not be excluded,” the majority concluded.

In dissenting reasons, Madam Justice Rosalie Abella said that the evidence ought to be excluded from Mr. Cole’s new trial because of the severity of the police error.

“The impact of the breach on the accused’s Charter -protected interests, even assuming that his reasonable expectation of privacy was reduced because it was a workplace computer, was significant given the extent of the intrusion into his privacy,” Judge Abella said.

“The warrantless search and seizure in this case included the entire contents of the accused’s computer. It had no restrictions as to scope. The extent of the search of the accused’s hard drive and browsing history was significant and weighs in favour of exclusion.

Scott Hutchison, a privacy expert at Stockwoods LLP, said the decision takes a significant step toward protecting of personal computer privacy.

The court stressed that judges must go beyond the formality of workplace computer policies and consider the vast amount of personal material a computer may reveal about an employee, Mr. Hutchison said.

"For most people, the reality is that they use their work computers for personal matters in the same way they might make a personal call on a work telephone," he said. 

Frank Addario, Mr. Cole's defence lawyer, said that employers are going to have to modernize their workplace computer use policies in recognition of this reality - particularly when it comes to an employee's history of Internet browsing.

"Who doesn't use the Internet at work?" Mr. Addario said. "The Supreme Court is recognizing that the Internet is highly revealing of private personal choices and they have given it constitutional protection. That is probably going to be one of the most significant lasting impacts of this judgment."

While the judgment offered principles rather than rules for workplace computer privacy, those principles will feature prominently in future cases, Mr. Addario said.

"There is a big world of litigation coming about how employees are affected when employers try to go in and get information," he said. "We should not assume employers are being given a free reign. There is no 'on-off' switch for privacy. Policies need to take into account the privacy interest that exists on the device and the information on it. It can't be invaded willy-nilly."

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