Her Majesty the Queen v. Richard Cole

(Ontario) (Criminal) (By Leave)

(Publication ban in case)




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Charter of Rights — Criminal law — Unreasonable search and seizure — Reasonable expectation of privacy — Employer issued computer — Whether the Court of Appeal erred in law in concluding that the accused possessed a reasonable expectation of privacy in his employer-issued work computer without due regard to the ownership of the computer, and the explicit employee use policies that established no such reasonable expectation of privacy — Should a diminished expectation of privacy in an employer-issued work computer impact upon the determination of whether there is a s. 8 Charter breach by law enforcement officials who are subsequently provided the computer by the employer — Whether the legal analysis undertaken by the Court of Appeal in relation to the admissibility of the tendered digital evidence under s. 24(2) of the Charter creates an impossible hurdle for law enforcement

Cole was a high school teacher who taught computer science. He was issued a laptop computer by the school. One of the school’s information technologists employed software to monitor the network to ensure its integrity. The technologist noted a high level of connection to the school server from Cole’s computer. In examining the usage, the technologist remotely accessed Cole’s history of internet access and one of his drives. The technologist found a potentially dangerous hidden file he believed might destabilize the school’s network. He opened the file and found nude photographic images of a young woman, who was a student of the school. The student had sent the photographs to another student via email. In the course of his supervisory duties, Cole had accessed the student’s email account, found the photographs, and copied them onto his computer. Cole surrendered his computer to the principal upon request. The school board’s technicians copied the photographs and internet file onto a disc and provided them to police with the computer. Police determined that a search warrant was unnecessary, as the school authorities had represented that they owned the computer and the data thereon. Police viewed the material and charged Cole with possession of child pornography and fraudulently obtaining data from another computer hard drive. The trial judge excluded the evidence on the basis of a breach of Cole’s s. 8 Charter rights. In overturning the decision, the summary conviction appeal judge held that although Cole had a valid subjective expectation of privacy in his computer’s contents, the trial judge erred in determining that such expectation was reasonable. The Court of Appeal allowed the appeal, set aside the decision of the summary conviction appeal judge and remitted the matter for trial. The court concluded that the evidence of the disc containing the temporary internet files and the laptop computer and its mirror image was excluded.

Lower Court Rulings

May 12, 2008
Ontario Court of Justice

[2008] O.J. No. 2417, 2008 ONCJ 278
Respondent’s application under s. 8 of the Charter to exclude evidence, granted
April 28, 2009
Ontario Superior Court of Justice

19/08, 2009 CanLII 20699
Appeal allowed; matter remitted back to trial
March 22, 2011
Court of Appeal for Ontario

C50526, 2011 ONCA 218
Appeal allowed; decision of the summary conviction appeal judge set aside; order substituted excluding evidence of disc containing temporary internet files, laptop computer and its mirror image; matter remitted back to trial