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.