R. v. Cole (R.) (2012), 436 N.R. 102 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2012] N.R. TBEd. OC.015
Her Majesty the Queen (appellant) v. Richard Cole (respondent) and Director of Public Prosecutions, Attorney General of Quebec, Criminal Lawyers’ Association (Ontario), Canadian Civil Liberties Association and Canadian Association of Counsel to Employers (interveners)
(34268; 2012 SCC 53; 2012 CSC 53)
Indexed As: R. v. Cole (R.)
Supreme Court of Canada
McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell and Moldaver, JJ.
October 19, 2012.
Summary:
The accused teacher was charged with possession of child pornography (Criminal Code, s. 163.1) and unauthorized use of a computer (s. 342.1). The accused argued that he had a privacy interest respecting the school laptop that was seized and in all information retrieved from it. He sought an order excluding evidence obtained in breach of his rights under s. 8 Charter rights. The trial judge allowed the application. He excluded the impugned evidence, consisting of the accused’s laptop computer, the contents of the hard drive, the school’s compact disks and the school board’s temporary internet file disk. The Crown had no further evidence and the charges were therefore dismissed. The Crown appealed.
The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned. A69, allowed the appeal and ordered a new trial. The accused sought leave to appeal.
The Ontario Court of Appeal, in a decision reported at 277 O.A.C. 50, granted leave to appeal and allowed the appeal. The court set aside the decision of the summary conviction appeal judge, substituted an order excluding the evidence of the disc containing the temporary internet files and the laptop computer and its mirror image, and remitted the matter for a new trial. The Crown appealed.
The Supreme Court of Canada, Abella, J., dissenting in part, allowed the appeal, set aside the exclusionary order and affirmed the order of a new trial.
Civil Rights – Topic 1508
Property – General principles – Expectation of privacy – The accused teacher was provided with a laptop by his school for use in teaching communication technology and in supervising a laptop program for students – He accessed a student’s email account, found nude photos of another student and copied them onto the hard drive of his school-issued laptop – A computer technician employed by the school discovered the photos – He went to the principal – The principal obtained the laptop from the teacher – The school board and police got involved – The accused was charged with, inter alia, possession of child pornography – The accused argued that his s. 8 Charter rights were violated as he had a privacy interest respecting the laptop and in all information retrieved from it – The Ontario Court of Appeal, held that, assuming that the Charter applied to the school board, the accused had a reasonable expectation of privacy from state intrusion in the personal use of the laptop and in the contents of his personal files on its hard drive – However, his expectation of privacy was modified – The Supreme Court of Canada agreed – Canadians could reasonably expect privacy in the information contained on work computers, at least where personal use was permitted or reasonably expected – The accused’s direct interest and subjective expectation of privacy in the informational content of his computer could readily be inferred from his use of the laptop to browse the Internet and to store personal information on the hard drive – The operational realities of the accused’s workplace weighed both for and against the existence of a reasonable expectation of privacy – For, because written policy and actual practice permitted him to use his work-issued laptop for personal purposes – Against, because both policy and technological reality deprived him of exclusive control over – and access to – the personal information he chose to record on it – The totality of the circumstances supported the objective reasonableness of the accused’s subjective expectation of privacy – See paragraphs 1 and 39 to 58.
Civil Rights – Topic 1508
Property – General principles – Expectation of privacy – [See second
Civil Rights – Topic 1646
].
Civil Rights – Topic 1645
Property – Search and seizure – Consent to search – Third party consent – The Crown argued that an employer (a third party) could validly consent to a warrantless search or seizure of a laptop issued to one of its employees – The Supreme Court of Canada stated, inter alia, that the underlying premise of this submission was that a third party could waive another person’s privacy interest, thereby disengaging that person’s guarantee under s. 8 of the Charter – In the United States, unlike in Canada, there was high authority for a doctrine of third party consent – The doctrine of third party consent was inconsistent with jurisprudence on first party consent – For consent to be valid, it had to be both voluntary and informed – The adoption of a doctrine of third party consent in Canada would imply that the police could interfere with an individual’s privacy interests on the basis of a consent that was not voluntarily given by the rights holder, and not necessarily based on sufficient information in his or her hands to make a meaningful choice – Therefore, a third party could validly consent to a search or otherwise waive a constitutional protection on behalf of another – See paragraphs 74 to 79.
Civil Rights – Topic 1645
Property – Search and seizure – Consent to search – Third party consent – [See second
Civil Rights – Topic 1646
].
Civil Rights – Topic 1646
Property – Search and seizure – Unreasonable search and seizure defined – The accused teacher was provided with a laptop by his school for use in teaching communication technology and in supervising a laptop program for students – He accessed a student’s email account, found nude photos of another student and copied them onto the hard drive of his school-issued laptop – A computer technician employed by the school discovered the photos during the course of his legitimate access to the laptop – He went to the principal – The school board and police got involved – The accused was charged with, inter alia, possession of child pornography – The accused argued that his s. 8 Charter rights were violated as he had a privacy interest respecting the laptop and in all information retrieved from it – The Ontario Court of Appeal held that, assuming that the Charter applied to the school board, the principal’s actions in viewing the face in the photos, directing the technician to copy the photos onto a disc and requiring the accused to immediately hand over the laptop, constituted a search and seizure – However, the principal and other school board officials did not violate s. 8 – They had the overriding obligation to ensure the health and safety of the students – The principal acted reasonably under the authority of s. 265 of the Education Act to protect students and ensure a safe learning environment – The Supreme Court of Canada agreed that the principal and school board officials had implied power to seize and search a school-board-issued laptop if they believed on reasonable grounds that the hard drive contained compromising photographs of a student – See paragraphs 61 to 63.
Civil Rights – Topic 1646
Property – Search and seizure – Unreasonable search and seizure defined – The accused teacher was provided with a laptop by his school for use in teaching communication technology and in supervising a laptop program for students – He accessed a student’s email account, found nude photos of another student and copied them onto the hard drive of his school-issued laptop – A computer technician employed by the school discovered the photos during the course of his legitimate access to the laptop – He went to the principal – The principal obtained the laptop – The school board searched the laptop, obtained data relating to the accused’s internet browsing, and saved the “temporary internet files” onto a disc – The laptop and discs were turned over to police – The police obtained a mirror image of the laptop’s hard drive, allowing them to view the entire contents of the laptop – No warrant was obtained as the police believed that the laptop was owned by the school board and it had consented to the police search – The accused was charged with, inter alia, possession of child pornography – The accused argued that his s. 8 Charter rights were violated as he had a privacy interest respecting the laptop and in all information retrieved from it – The Ontario Court of Appeal held that the police search of the laptop and the police seizure of the disc containing temporary internet files violated s. 8 – Teachers were expressly permitted to store personal information on their work computers – The Supreme Court of Canada agreed that the police infringed the accused’s s. 8 rights – The accused expected a measure of privacy in his personal information on the laptop – Even taking into account the relevant workplace policies, this expectation of privacy, although diminished somewhat, was still reasonable in the circumstances and protected by s. 8 – It was subject to state intrusion only under the authority of a reasonable law – The Crown could point to no law authorizing the police to conduct, as they did, a warrantless search of the work laptop – The lawful authority of his employer, a school board, to seize and search the laptop did not furnish the police with the same power – The school board’s “third party consent” to the search was of no legal consequence – 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 – The accused’s personal information remained subject, at all relevant times, to his reasonable and subsisting expectation of privacy – See paragraphs 8 to 10 and 65 to 79.
Civil Rights – Topic 1655.2
Property – Search and seizure – Warrantless search and seizure – Computers – [See both
Civil Rights – Topic 1646
].
Civil Rights – Topic 8368
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Exclusion of evidence – The accused teacher was provided with a laptop by his school for use in teaching communication technology and in supervising a laptop program for students – Teachers were permitted to store personal information on their work computers – The accused accessed a student’s email account, found nude photos of another student and copied them onto the hard drive of his school-issued laptop – A computer technician employed by the school discovered the photos during the course of his legitimate access to the laptop – He went to the principal – The principal obtained the laptop – The school board searched the laptop, obtained data relating to the accused’s internet browsing, and saved the “temporary internet files” onto a disc – The laptop and discs were turned over to police – The police obtained a mirror image of the laptop’s hard drive, allowing them to view the entire contents of the laptop – No warrant was obtained – The accused was charged with, inter alia, possession of child pornography – The Ontario Court of Appeal held that the police search of the laptop and the police seizure of the disc containing temporary internet files violated s. 8 of the Charter and that this evidence should be excluded under s. 24(2) – The Supreme Court of Canada held that the evidence should not be excluded – The police officer did not knowingly or deliberately disregard the warrant requirement – The law governing privacy expectations in work computers was still unsettled at the time – He did not act negligently or in bad faith – His conduct did not demonstrate an insensitivity to Charter values or an unacceptable ignorance of the accused’s Charter rights – 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 have a marked negative impact on the truth-seeking function of the criminal trial process – See paragraphs 80 to 98.
Civil Rights – Topic 8368.1
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Exclusion of evidence – Whether evidence excluded for all purposes – The accused teacher was charged with, inter alia, possession of child pornography after nude photos of a student were found on his school-issued laptop – The school board searched the laptop, obtained data relating to the accused’s internet browsing, and saved the “temporary internet files” onto a disc – The laptop and discs were turned over to police – The police obtained a mirror image of the laptop’s hard drive, allowing them to view the entire contents of the laptop – No warrant was obtained – The Ontario Court of Appeal held that the police search of the laptop and the police seizure of the disc containing temporary internet files violated s. 8 of the Charter and that this evidence should be excluded under s. 24(2) – The court only provisionally excluded the disc containing the Internet files, leaving it “open to the trial judge to re-assess the admissibility of this evidence if the evidence becomes important to the truth-seeking function as the trial unfolds” – The Supreme Court of Canada stated that, for reasons of principle and of practice, the exclusion of evidence should generally be final – An accused was entitled, as a matter of principle, to know the case to meet – If an exclusionary order was revisited after the Crown closed its case, this principle was necessarily undermined – If the case to meet continued to shift, the prejudice was obvious and the trial might well become unmanageable – Moreover, even when an exclusionary order was revisited before the Crown closed its case, there was a serious danger of prejudice to the defendant – The decisions of defence counsel over the course of the trial, premised on the assumption that the evidence had been excluded, risked being undercut – It would be extraordinarily difficult for a trial court to remedy this sort of prejudice – In this case, the justification offered would not, at least not on its own, qualify as “very limited circumstances” justifying an exception to the rule – Unconstitutionally obtained evidence, once excluded, would not become admissible simply because the Crown could not otherwise satisfy its burden to prove the guilt of the accused beyond a reasonable doubt – See paragraphs 99 to 104.
Cases Noticed:
R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 1].
R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 34].
R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81, refd to. [para. 34].
R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321, refd to. [para. 34].
R. v. Patrick (R.S.), [2009] 1 S.C.R. 579; 387 N.R. 44; 454 A.R. 1; 455 W.A.C. 1; 2009 SCC 17, refd to. [para. 35].
R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 37].
Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 37].
R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 37].
R. v. M.R.M., [1998] 3 S.C.R. 393; 233 N.R. 1; 171 N.S.R.(2d) 125; 519 A.P.R. 125, refd to. [para. 38].
R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 39].
R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 45].
R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 51].
O’Connor v. Ortega (1987), 480 U.S. 709, refd to. [para. 52].
R. v. Gomboc (D.J.), [2010] 3 S.C.R. 211; 408 N.R. 1; 490 A.R. 327; 497 W.A.C. 327; 2010 SCC 55, refd to. [para. 53].
R. v. Colarusso, [1994] 1 S.C.R. 20; 162 N.R. 321; 69 O.A.C. 81, refd to. [para. 67].
Quebec (Procureur général) v. Laroche et al., [2002] 3 S.C.R. 708; 295 N.R. 291; 2002 SCC 72, refd to. [para. 70].
R. v. Jarvis (W.J.), [2002] 3 S.C.R. 757; 295 N.R. 201; 317 A.R. 1; 284 W.A.C. 1; 2002 SCC 73, refd to. [para. 70].
R. v. D’Amour (M.) (2002), 163 O.A.C. 164; 166 C.C.C.(3d) 477 (C.A.), refd to. [para. 70].
R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13, refd to. [para. 72].
United States of America v. Matlock (1974), 415 U.S. 164, refd to. [para. 75].
Illinois v. Rodriguez (1990), 497 U.S. 177, refd to. [para. 75].
United States of America v. Ziegler (2007), 474 F.3d 1184 (9th Cir.), refd to. [para. 76].
R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, refd to. [para. 76].
R. v. Wong et al., [1990] 3 S.C.R. 36; 120 N.R. 34; 45 O.A.C. 250, refd to. [para. 76].
R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 81].
R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 82].
R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81, refd to. [para. 91].
R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 95].
R. v. Calder, [1996] 1 S.C.R. 660; 194 N.R. 52; 90 O.A.C. 18, refd to. [para. 100].
R. v. Underwood (G.R.), [1998] 1 S.C.R. 77; 221 N.R. 161; 209 A.R. 276; 160 W.A.C. 276, refd to. [para. 101].
R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 106].
R. v. Trask, [1987] 2 S.C.R. 304; 79 N.R. 145; 68 Nfld. & P.E.I.R. 271; 209 A.P.R. 271, refd to. [para. 106].
R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, refd to. [para. 111].
Authors and Works Noticed:
Westin, Alan F., Privacy and Freedom (1970), p. 7 [para. 42].
Counsel:
Amy Alyea and Frank Au, for the appellant;
Frank Addario, Gerald Chan and Nader R. Hasan, for the respondent;
Ronald C. Reimer and Monique Dion, for the intervener, the Director of Public Prosecutions;
Dominique A. Jobin and Gilles Laporte, for the intervener, the Attorney General of Quebec;
Jonathan Dawe and Michael Dineen, for the intervener, the Criminal Lawyers’ Association (Ontario);
Jonathan C. Lisus and Michael Perlin, for the intervener, the Canadian Civil Liberties Association;
Daniel Michaluk and Joseph Cohen-Lyons, for the intervener, the Canadian Association of Counsel to Employers.
Solicitors of Record:
Attorney General of Ontario, Toronto, Ontario, for the appellant;
Addario Law Group and Ruby Shiller Chan, Toronto, Ontario, Toronto, for the respondent;
Public Prosecution Service of Canada, Edmonton, Alberta, for the intervener, the Director of Public Prosecutions;
Attorney General of Quebec, Quebec, Quebec, for the intervener, the Attorney General of Quebec;
Dawe & Dineen, Toronto, Ontario, for the intervener, the Criminal Lawyers’ Association (Ontario);
Lax O’Sullivan Scott Lisus, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association;
Hicks Morley Hamilton Stewart Storie, Toronto, Ontario, for the intervener, the Canadian Association of Counsel to Employers.
This appeal was heard on May 15, 2012, before McLachlin, C.J.C., Lebel, Fish, Abella, Rothstein, Cromwell and Moldaver, JJ., of the Supreme Court of Canada. The decision of the court was delivered on October 19, 2012, and the following opinions were filed:
Fish, J., (McLachlin, C.J.C., LeBel, Rothstein, Cromwell and Moldaver, JJ., concurring) – see paragraphs 1 to 106;
Abella, J., dissenting in part – see paragraphs 107 to 136.
