R. v. Cole

Mr. Cole was a high school teacher charged with the possession of child pornography. Mr. Cole used a lap top computer given to him by his school. An IT technician discovered photographs of a naked student on Mr. Cole’s hard drive while performing a remote virus scan. The principal ordered the technician to copy the images onto a disc. He directed Mr. Cole to give him the laptop. A school board official then searched the laptop, copied temporary internet files from Mr. Cole’s surfing history onto another disc, and turned all of the items over to the police. The police searched the laptop without a warrant.

While the school board owned the laptop Mr. Cole was given exclusive use of it. He and other teachers were allowed to use their computers for personal purposes and were allowed to take the computers home over the summer holidays. Mr. Cole successfully excluded the evidence seized from his computer at trial; this finding was reversed by a summary conviction appeal court judge.

On appeal to the Ontario Court of Appeal, Mr. Cole argued that he had a reasonable expectation of privacy in the personal contents of his laptop, and that the technician, the principal, the school board official and the police had breached his right to be free of unreasonable search and seizure under the Charter of Rights and Freedoms. Mr. Cole also argued that all of the evidence against him should be excluded because of the Charter breaches.

The Court agreed with Mr. Cole in part and excluded the laptop and mirror image of its hard drive because the police breached Mr. Cole’s privacy rights by searching his laptop without a warrant. The Court ruled that Mr. Cole had a reasonable expectation of privacy in his work computer because he was allowed personal use on the computer. The Court explained that computers are deserving of a high level of Charter protection because of the highly personal nature of the data that can be found on any citizen’s computer. The Court excluded the evidence because of the strong Charter protection afforded to personal computers and because the police were reckless in searching without a warrant even though they knew that Mr. Cole was allowed personal use on the computer.

You can read the Court of Appeal's decision here.

Richard Cole, was represented by Frank Addario and Andrew Furgiuele.