Supreme Court grants new trial for teacher over nude student pictures on school-owned computer

OTTAWA – Bosses who discover employees doing illegal personal business on their work computers can’t just hand over the material to the cops, the Supreme Court of Canada said Friday.

That personal information is considered private, so police need a warrant to seize it, the top court said in ordering new trial for a high school teacher whose school-issued computer was found to contain nude photos of a female student.

“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,” Justice Morris Fish wrote in the 6-1 decision.

“Vis-a-vis the state, everyone in Canada is constitutionally entitled to expect privacy in personal information of this kind.”

The case involved Ontario high-school teacher Richard Cole who accessed a male student’s email account, discovered nude pictures of a female student and copied them onto his work laptop, where a school technician discovered them while doing maintenance.

The computer was seized, the files copied onto a disc and the whole thing handed over to the police, who created a mirror image of the drive for forensic purposes.

But because they didn’t get a warrant, the lower courts threw out the evidence as a violation of Cole’s Charter right to be secure against unreasonable search or seizure.

That decision was overturned on appeal and a new trial was ordered, although the appeal judges still excluded much of the material.

The Supreme Court ruled that the warrantless search was not an egregious breach of charter rights and that admitting all the evidence from the computer at trial would not bring the administration of justice into disrepute.

“The evidence is highly reliable and probative physical evidence,” Fish wrote.

“The exclusion of the material would have a marked negative impact on the truth-seeking function of the criminal trial process.”

The court said Cole did have a reasonable expectation of privacy with the computer, but if police had asked for a warrant, they would have received one and found the evidence.

“The school board was legally entitled to inform the police of its discovery of contraband on the laptop,” Fish wrote. “This would doubtless have permitted the police to obtain a warrant to search the computer for the contraband.

“But receipt of the computer from the school board did not afford the police warrantless access to the personal information contained within it.”

Justice Rosalie Abella dissented, saying the police search without a warrant was a serious breach of charter rights.

“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,” Abella wrote.

“The warrantless search and seizure in this case included the entire contents of the accused’s computer. It had no restrictions as to scope.”

Cole had been charged with possession of child pornography and unauthorized use of a computer.




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Supreme Court grants new trial for teacher over nude student pictures on school-owned computer

  1. This is a weird one.
    IMO there was no violation of rights, a warrant was not required because it was a workplace computer — thus *not* the computer of the person who was keeping the material on it. If the workplace provided the computer to the police, then that’s consent, no warrant required.

    On the other hand, *had* it been a personal computer, then the search was warrantless and an egregious violation of the accused’s rights. Whether they *could* have gotten a warrant for it is irrelevant. They didn’t.

    It seems we forget that the whole purpose of warrants isn’t to protect the guilty, but to protect people from being railroaded by police.

    • Well, no worries on your part. They very much didn’t protect his rights or the concept of warrants. Rather, they seem to affirm that if the police screw up, but collect evidence anyway, it can still be used. As stated in my other post, I’d prefer if they did not call this a privacy right, rather than ignore it.

      However, you make this statement. “It seems we forget that the whole purpose of warrants isn’t to protect
      the guilty, but to protect people from being railroaded by police.” That is incomplete. That is not the only reason for warrants. It is also so they cannot spy on everyone without just cause. Not just to prevent them from railroading you for a crime, but to prevent one group of society having complete knowledge (and thus, power) over everyone else. It so that, for example, if my son dates a policeman’s ex-wife, I don’t have to worry that he can bug my son’s calls and track his E-mails easily and legally because he’s the “police” and he’s allowed to do that to everyone. It’s so that a partisan police chief can’t demand searches on political opponents houses to see if he can scrap up something that’s embarrassing, or even just politically useful. I mean, I can go on and on. Warrants exist so they police only search people whom they have reason to be suspicious of doing something wrong.

  2. Weirdest part is I simply do NOT understand the judgement.

    Firstly, I was shocked the hear that something you did on a work computer could be considered “private”. Personally, I reject that. However, that’s not the part that confuses me.

    What confuses me is that the ruling states ” Bosses who discover employees doing illegal personal business on their
    work computers can’t just hand over the material to the cops”. OK. It then states “Vis-a-vis the state, everyone in Canada is constitutionally entitled to expect privacy in personal information of this kind.” OK. So, the court states cops can’t just search the computer without a warrant, it is a constitutionally protected privacy right, HOWEVER, all material collected in this manner can still be used in the new trial.

    Uhh…

    If the evidence gathered can still be used because it isn’t an “egregious” breach, then;

    A. Why are the judges saying the search wasn’t isn’t allowed, since they just allowed the evidence to be used?

    B. Why are they saying it violates a person’s privacy rights, when they then ignore those right they just affirmed?

    It would make more sense to me if they said a person cannot expect privacy right when using a work computer. At least, that is consistent and logical. With this ruling, the court says the cops aren’t allowed to do something without a warrant, that a person’s privacy rights were breached, but nevertheless, all evidence collected will be used. So why would cops worry about getting a warrant or breaching a person’s privacy when the rules state all evidence collected is still admissible? This truly baffles me.

    Why have rights or warrants if they don’t mean anything? I’d rather believe I didn’t have a right to expect privacy on my work computer, than believe I have a right but police and the courts can ignore it at their whim without any knowable consequence. It sullies the concept of “rights”, or the safeguard of demanding police seek warrants.

    Finally, I ask, what is the lesson here then? A legal expert opinion would be nice, because perhaps I misinterpret it. However, What I get from this is, as a employer, if I want to hand a computer over to the police based on something, I can. As a policeman, I can take it and search it. I “should” get a warrant, but *wink wink*, not really.

    • It is actually quite simple. To review the personal data in this case, the police needed a warrant. The Supreme Court is only giving the free pass (non exclusion) to the police in this case because the case law was not defined at the time, therefore, the warrentless search was not egregious. But, only in the Cole case. This ruling sets the case law moving forward. Because this establishes case law at the Supreme Court level, any similar warrentless search in the future would be egregious and thus the evidence in future cases inadmissible. Therefore, once this case law gets disseminated at the local police level, the police will be far more diligent in securing warrants in similar cases.

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