Oct 24, 2012

Supreme Court of Canada weighs in on teacher’s privacy expectation on work laptop

Top court finds expectation of privacy over personal information on work computer exists, but is diminished

Canada’s top court has found that an Ontario teacher caught with inappropriate photos of a teenage student on his work laptop had an expectation of privacy regarding his personal use of the computer, but that expectation was limited because of the laptop’s ownership by his employer.

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 of Canada agreed with the Ontario Court of Appeal that the police search of Cole’s personal files on the laptop without a warrant was a violation of his charter privacy rights, as it revealed “intimate” information about his “biographical core.” However, it found the evidence the police found should not be excluded because there was a different level of privacy expectation for a work laptop. Had the computer been Cole’s personal computer, his privacy expectation would have been high, but because the laptop was owned and given to him by the school, this expectation was diminished, said the Supreme Court.

The Supreme Court found the school had a duty to maintain a safe environment for its students. This duty gave it the right to seize Cole’s laptop and examine its contents if there was a reasonable belief that there were inappropriate photos of an underage student on it. Since the school technician had found photos during maintenance of the laptop, there was a reasonable basis for the search, said the court.
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