Charter Protection Extended to an Employee’s Reasonable Expectation of Privacy in a Work-Issued Computer in R v Cole
On October 19, 2012, the Supreme Court of Canada released its judgment in R v Cole,  3 SCR 34 [Cole]. The decision on the search and seizure of child pornography on a work-issued laptop was highly anticipated not only by criminal lawyers but those in labour and employment law as well. Although not subject to the Charter (like the court assumed school boards were), private employers are interested to know the limits and scope of an employee’s privacy interest in work property.
In R v Morelli,  1 SCR 253 the court held that individuals have a reasonable expectation of privacy in the informational content of their personal computes. Cole extended this finding to work-issued computers. Although the expectation of privacy is diminished in a workplace computer, employees still have a privacy interest in the informational content of work-issued computers protected by s. 8 of the Charter.
The decision is an appeal from the judgment of Justice Karakatsanis from the Ontario Court of Appeal. Appointed to the Supreme Court of Canada in October 2011 after a year and a half at the Ontario Court of Appeal, Justice Karakatsanis did not sit on the appeal of this case. Her judgment from the Ontario Court of Appeal is closely aligned with the dissent than the majority.
Cole, a high school teacher, was charged with possession of child pornography and unauthorized use of a computer contrary to sections 163.1(4) and 342.1(1) of the Criminal Code, RSC 1985, c C-46 [Criminal Code]. Part of his duties included policing the use of networked laptops by students; he was given a work-issued laptop for this purpose which allowed him to access student’s laptops. He was permitted to use the laptop for incidental personal purposes, and was made aware that a technician could access his laptop for maintenance activities. The school’s Policy and Procedure Manual also stated that all data and messages generated on the laptop were considered property of the school board.
During the course of routine maintenance a technician found nude photographs of an underage female student on Cole’s laptop. The technician copied the photographs to a disk and notified the school principal. The principal seized the laptop, and school board technicians copied the temporary Internet files onto a second disk. The laptop and the two disks were given to the police who, without a warrant, reviewed their contents and created a mirror image of the hard drive.
Cole brought a pre-trial motion seeking exclusion of the computer evidence. He alleged the evidence was obtained by illegal searches contrary to s. 8 of the Charter and that it should be excluded under s. 24(2) of the Charter.
The trial judge agreed that the two disks, laptop, and mirror image of the hard drive had been obtained as a result of unreasonable searches contrary to s. 8. All the evidence was excluded under s. 24(2).
The summary conviction appeal court reversed the decision of the trial judge, finding that Cole had no reasonable expectation of privacy in the work-issued laptop. It would have admitted all the evidence.
In a judgment written by Justice Karakatsanis, the Ontario Court of Appeal found that Cole did have a reasonable expectation of privacy in the laptop, albeit one which was modified by the technician’s access to it for maintenance purposes. It found that the initial discovery of the material by the technician was not a search because he was acting within the scope of his duties.
While subsequent actions by the principal and school board officials were searches, they were reasonable because they were authorized as part of their obligations to ensure school safety under the Education Act, RSO 1990, c E.2 [Education Act]. The searches by the police were not authorized by law and thus unreasonable.
Since Cole had no privacy interests in the photographs, which were of a student, the disk of photographs was not seized within the meaning of s. 8. Cole had no legal basis to attack the search and seizure by the police of the disk to which they had been copied.
In contrast, Cole had a continuing reasonable expectation of privacy in the laptop and the disk of temporary Internet files. This was violated during the course of the police investigation, contrary to s. 8 of the Charter.
The Court of Appeal excluded the laptop and its mirror image under s. 24(2), but admitted the disk of photographs. In an unusual decision, the Court of Appeal provisionally excluded the disk of temporary Internet files, leaving the decision open to reassessment by the trial judge if the evidence “becomes important to the truth seeking function as the trial unfolds.”
The Crown appealed from the order excluding the laptop, its mirror image, and the disk of temporary Internet files. Cole did not challenge the admission of the disk of photographs.
Was there a Search?
A “search” or “seizure” within the meaning of s. 8 occurs where a person’s reasonable expectation of privacy is violated. Police inspection or taking of an object in which there is no expectation of privacy are not a “search” or a “seizure” for Charter purposes.
The subject matter of the alleged searches in question was not the devices themselves but the informational content on the laptop, its mirror image, the disk of temporary Internet files, and the disk of photographs. In determining whether Cole had a reasonable expectation of privacy in the informational content of his work-issued laptop, the SCC considered the totality of the circumstances, including workplace policies.
The SCC found Cole had no reasonable expectation of privacy in the photographs, which were of a student and not himself. He did have a reasonable and subsisting expectation of privacy in the content of his laptop, its mirror image of the hard drive, and the Internet file disk. The data was highly revealing of Cole’s personal life and was intimately connected to the biographical core of information – something that s. 8 intended to protect.
Cole’s reasonable expectation of privacy in the content of the laptop was modified by workplace policies which allowed school board technicians to access it for the purpose of maintaining the technical integrity of the school’s information network.
The Court held that the school board’s ownership of the laptop, although a relevant consideration, was not determinative. Section 8 is not restricted to the protection of property or associated with the law of trespass.
Based on these considerations, the Court found that there was no search by the school technician because he was acting within the scope of his inspection duties and accordingly had not violated Cole’s privacy interests. However, subsequent actions by the principal and police violated Cole’s privacy interests and attracted s. 8.
Was the Search Reasonable?
Section 8 is only violated where the search was unreasonable, either because (1) it was not authorized by law or (2) because the manner in which it was conducted was unreasonable. The two searches in question were conducted by the principal and school board officials, and by the police.
The search and seizure of the work-issued laptop by the principal and school board officials were reasonable because they were authorized by law. Specifically, the principal had a statutory duty to maintain a safe school codified under the Education Act (s. 265). This duty includes, by necessary implication, a reasonable power to search and seize the work-issued laptop.
Accordingly, the actions by the principal and school board officials did not violate s. 8.
The police had no lawful authority to search and seize the laptop. Their actions were not authorized by statute and the police did not obtain a warrant beforehand, although they had sufficient grounds to do so.
The lawful authority of the school board under the Education Act to search and seize the laptop did not furnish the police with the same power. The school board was entitled to inform the police of its discovery of contraband on the laptop, but could not give the police a power of warrantless access to the personal information contained in it.
The Court rejected the Crown’s argument that the police search was authorized by law because the school board had consented to the search. A third party cannot validly consent to a search or otherwise waive the constitutional protections of another.
Having concluded that the laptop, the mirror image of its hard drive, and the disk containing the temporary Internet files were obtained in violation of s. 8, the Court then considered whether they should be excluded under s. 24(2).
Section 24(2) analysis
The Court applied the test from R v Grant,  2 SCR 353 [Grant] for determining whether the admission of evidence would bring the administration of justice into disrepute. Grant established three broad inquiries:
The majority disagreed with the trial judge and the Court of Appeal as to the seriousness of the Charter-infringing conduct. It found that, given the rapidly evolving case law on privacy interests in electronic information, the police had not knowingly or deliberately disregarded the warrant requirement. Although the jurisprudence had subsequently established that ownership of the laptop was not determinative of the Charter analysis, the police officer did not have the benefit of this decision at the time of the events. Further, in addition to considering the ownership of the laptop the police considered whether the hard drive contained private information and respected Cole’s request to not look at personal images of his wife.
The majority also pointed out that the police had reasonable and probable grounds to obtain a warrant. This had a mitigating effect because the decision not to obtain one did not indicate casual disregard for the individual’s Charter rights, but rather a mistaken understanding of an unsettled area of the law.
The Court considered the diminished nature of Cole’s reasonable expectation of privacy in the laptop at this stage of the analysis. It found that the trial judge had neglected to consider that Cole’s privacy interest had been diminished by workplace policies and procedures.
The Court also found that the trial judge had failed to consider the impact of discoverability of the computer evidence. Because the officer had reasonable and probable grounds to believe there was evidence of an offence in the laptop and disk of temporary Internet files, he could have obtained a warrant and the evidence would have been discovered without any breach of Cole’s Charter rights.
The Court found that the combined effect of the two above points attenuated the impact of the breach on Cole’s Charter protected interests.
The laptop, the mirror image of its hard drive, and the disk of temporary Internet files were highly reliable and probative physical evidence. The majority held that the evidence was critical to the Crown’s case. On this basis, it concluded that the truth-seeking function of the criminal trial process would be better served by the admission of the evidence.
In its conclusion, the majority overturned on the Court of Appeal order to exclude the disk of temporary internet file on a provisional basis which left it open to the trial judge to reassess the decision if the evidence were to become important to the truth seeking function as the trial unfolded. The SCC held that the decision to exclude evidence under s. 24(2) should be final, although a material change of circumstances may justify a trial judge in revisiting an exclusionary order. This was not an appropriate case to apply the exception. Unconstitutionally obtained evidence, once excluded, cannot become admissible simply because the Crown cannot otherwise satisfy its burden to prove the guilt of the accused beyond a reasonable doubt.
Dissent by Justice Abella
Justice Abella agreed with the majority’s s. 8 analysis but dissented on the s. 24(2) analysis. Like the Court of Appeal decision of Justice Karakatsanis, she would have excluded the disk containing the temporary Internet files, the laptop, and the mirror image of the hard drive, while admitting the disk of photographs.
Justice Abella noted that it is becoming increasingly common to store data in the cloud, where it can be accessed from a variety of different computers, both workplace and personal. Accordingly the ownership of the device or the data is becoming an increasingly unhelpful marker. She offered the helpful analogy of an office desk: police could not have relied on the school board’s ownership of an office desk for a warrantless search of Cole’s personal files in the desk drawer, in complete disregard for Cole’s privacy interests. The same should be true for Cole’s school-owned laptop.
In reaching a different conclusion from the majority on the admissibility of the evidence, Justice Abella made a number of different findings on the reasonableness of police action, the effect of the extent of the search on the analysis, and the importance of the evidence to the Crown’s case.
Firstly, on the seriousness of the Charter-infringing conduct, she found that the police had not acted in good faith and had not known the established Charter jurisprudence sufficiently. In a holding diametrically opposed to that of the majority, she found that although the law’s application to electronic information is relatively new, the question of the importance of ownership for a reasonable expectation of privacy has long been settled. Given the considerable jurisprudence which had divorced the concept of privacy from the law of trespass (decisions such as Hunter v Southam,  2 SCR 145, R v Wong,  3 SCR 36, and R v Buhay,  1 SCR 631) the officer should have known that property interests did not determine the reasonable expectation of privacy. Basing his decision not to get a warrant primarily on the school board’s ownership of the laptop indicated a serious disregard for Charter standards.
On the second element of the Grant test, Justice Abella considered the extent of the seizure, a factor which was not considered by the majority. She found that despite the diminished expectation of privacy in a work-issued laptop, the significant extent of the seizure indicated that the search was highly intrusive. Unlike the majority, she did not consider the discoverability of the evidence.
Thirdly, Justice Abella disagreed on the importance of the evidence to the Crown’s case. While the majority had described it as “crucial,” Justice Abella noted that the prosecution already had the photographs themselves as well as screenshots showing their location on Cole’s computer. She concluded that the importance of the disk of temporary Internet files laptop and its mirror image was speculative at best.
Justice Abella concluded that the disk of temporary Internet files and the mirror image of the hard drive should be excluded because the Charter-infringing conduct showed serious disregard for Charter standards, the impact was significant given the extent of the intrusion into his privacy, and because the importance of the evidence to the prosecution’s case was speculative.