Final word on employee expectations of privacy given to Supreme Court

Child pornography charges against teacher dropped, then reinstated at successive levels of court
|employmentlawtoday.com|Last Updated: 04/26/2012

A controversial case dealing with a teacher’s privacy in the wake of child pornography charges is going to Canada’s top court.

Sudbury, Ont., teacher Richard Cole was charged with possessing child pornography after explicit images of a 16-year-old female student were found on his work laptop computer, which Cole had obtained after accessing another student’s email account as part of his duties to monitor student emails. The Ontario Court of Justice found the evidence from the laptop should be excluded from his trial because police obtained it without a warrant – after the school turned the laptop over -- and infringed on Cole’s expectation of privacy with regards to his personal computer use. In March 2011, the Ontario Superior Court overturned the decision but the Ontario Court of Appeal reinstated the original decision.

The Court of Appeal found the police violated Cole’s privacy when it searched the files from his personal Internet browsing without a warrant. However, the court found the image files found by the school’s technician were acceptable as evidence because the technician’s search was part of normal maintenance procedure and not beyond reasonable expectations of privacy for the laptop. The technician also only searched and copied the images and didn’t delve further into Cole’s personal files.

The Supreme Court is expected to reach a decision in 2013.

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