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Expanded Case Details

R. v. Cole 2012 SCC 53

In R. v. Cole 2012 SCC 53, the majority judgment was delivered by Fish J. Abella J. dissented.

Fish J. stated:

The Court left no doubt in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, that Canadians may reasonably expect privacy in the information contained on their own personal computers. In my view, the same applies to information on work computers, at least where personal use is permitted or reasonably expected.

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. Vis-à-vis the state, everyone inCanadais constitutionally entitled to expect privacy in personal information of this kind.

While workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely: the nature of the information at stake exposes the likes, interests, thoughts, activities, ideas and searches for information of the individual user.

… I agree with the Court of Appeal that the police infringed [the teacher’s] rights under s. 8 of the Charter. He expected a measure of privacy in his personal information on the laptop. Even taking into account the workplace policies, this expectation of privacy was reasonable in the circumstances. It was however, a diminished expectation of privacy in comparison with the privacy interest considered in Morelli – which, unlike this case, involved a personal computer that belonged to Mr. Morelli and was searched and seized in his home.

A reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter. Accordingly, it is subject to state intrusion only under the authority of a reasonable law.

… The lawful authority of his employer – a school board – to seize and search the laptop did not furnish the police with the same power. And the school board’s “third party consent” to the search was of no legal consequence.

… Where as here, a search is carried out without a warrant, it is presumptively unreasonable … To establish reasonableness, the Crown must prove on the balance of probabilities (1) that the search was authorized by law, (2) that the authorizing law was itself reasonable, and (3) that the authority to conduct the search was exercised in a reasonable manner …

Whether [the teacher] had a reasonable expectation of privacy depends on the “totality of the circumstances” …

The totality of circumstances test is one of substance, not of form. Four lines of inquiry guide the application of the test: (1) an examination of the subject matter of the alleged search; (2) a determination as to whether the claimant had a direct interest in the subject matter; (3) an inquiry into whether the claimant had a subjective expectation of privacy in the subjective matter; and, (4) an assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of circumstances.

Fish J. then discussed each of these factors (see paragraphs 42 to 58). In discussing the employer’s written policies, he stated:

While the ownership of property is a relevant consideration, it is not determinative … Nor should it carry undue weight within the contextual analysis …

The context in which personal information is placed on an employer-owned computer is nonetheless significant. The policies, practices and customs of the workplace are relevant to the extent that they concern the use of computers by employees. These “operational realities’ may diminish the expectation of privacy that reasonable employees might otherwise have in their personal information …

Even as modified by practice, however, written policies are not determinative of a person’s reasonable expectation of privacy. Whatever the policies state, one must consider the totality of the circumstances in order to determine whether privacy is a reasonable expectation in the particular situation …

The “totality of the circumstances” consists of many strands, and they pull in competing directions in this case. On balance, however, they support the objective reasonableness of [the teacher’s] subjective expectation of privacy.

… As [the teacher] had a reasonable expectation of privacy in his Internet browsing history and the informational content of his work-issued laptop, any non-consensual examination by the state was a “search”; and any taking, a ‘seizure.”

… The Court of Appeal concluded that, in the circumstances of this case, the subsequent search and seizure of the laptop acting under the direction of the principle was not unreasonable within the meaning of s. 8 of the Charter. … I agree with the Court of Appeal. The principal had a statutory duty to maintain a safe school environment … and by necessary implication, a reasonable power to seize and search a school-board issued laptop if the principal believed on reasonable grounds that the hard drive contained compromising photographs of a student … I likewise agree with the Court of Appeal that other school board officials had the same implied powers of search and seizure as the principal …

On the conduct of the police, Fish J. stated:

The police may well have been authorized to take physical control of the laptop and CD temporarily, and for the limited purpose of safeguarding potential evidence of a crime until a search warrant could be obtained. However, that is not what occurred here. Quite the contrary: The police seized the laptop and CD in order to search their contents for evidence of a crime without the consent of [the teacher], and without prior judicial authorization.

The unresolved question on this appeal is whether the authority of the school officials afforded the police lawful authority to conduct this warrantless search and seizure, In my view, it did not,

In taking possession of the computer material and examining its contents, the police acted independently of the school board … The fact that the school board had acquired lawful possession of the laptop for its own administrative purposes did not vest in the police a delegated or derivative power to appropriate and search the computer for the purposes of a criminal investigation.

… Where a lower constitutional standard is applicable in an administrative context, as in this case, the police cannot invoke that standard to evade the prior judicial authorization that is normally required for searches or seizures in the context of criminal investigations.

… The school board was, of course, legally entitled to inform the police of its discovery of contraband on the laptop. 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. This information remained subject, at all relevant times, to [the teacher’s] reasonable and subsisting expectation of privacy.

Section 24 of the Charter provides that evidence arising from a Charter infringement shall be excluded “if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” After examining the relevant factors, Fish J., on behalf of the majority, concluded that:

… the admission of the evidence would not bring the administration of justice into disrepute. The breach was not high on the scale of seriousness and its impact was attenuated by both the diminished privacy interest and the discoverability of the evidence. The exclusion of the material would, however, have a marked negative impact on the truth-seeking function of the criminal trial process.

For all these reasons, I would not exclude the evidence unlawfully obtained by the police in this case.

Abella, J. dissented on the basis that the trial judge had acted reasonably in excluding the evidence pursuant to s. 24(2) of the Charter.

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