Court headnote

R. v. Cole
Collection
Supreme Court Judgments
Date
2012-10-19
Neutral citation
2012 SCC 53
Report
[2012] 3 SCR 34
Case number
34268
Judges
McLachlin, Beverley; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 34268
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34
Date: 20121019 Docket: 34268
Between:
Her Majesty The Queen
Appellant
and
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
Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell and Moldaver JJ.
Reasons for Judgment: (paras. 1 to 106)
Dissenting Reasons: (paras. 107 to 136)
Fish J. (McLachlin C.J. and LeBel, Rothstein, Cromwell and Moldaver JJ. concurring)
Abella J.
R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34
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
Indexed as: R. v. Cole
2012 SCC 53
File No.: 34268.
2012: May 15; 2012: October 19.
Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell and Moldaver JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Search and seizure — Information contained on computer — Pornographic pictures of child found on employer-issued work computer — Whether accused had reasonable expectation of privacy in employer-issued work computer — Whether warrantless search and seizure of laptop computer and disc containing Internet files breached accused’s rights under s. 8 of Charter — If so, whether evidence ought to be excluded pursuant to s. 24(2) of Charter .
The accused, a high-school teacher, was charged with possession of child pornography and unauthorized use of a computer. He was permitted to use his work-issued laptop computer for incidental personal purposes which he did. While performing maintenance activities, a technician found on the accused’s laptop a hidden folder containing nude and partially nude photographs of an underage female student. The technician notified the principal, and copied the photographs to a compact disc. The principal seized the laptop, and school board technicians copied the temporary Internet files onto a second disc. The laptop and both discs were handed over to the police, who without a warrant reviewed their contents and then created a mirror image of the hard drive for forensic purposes. The trial judge excluded all of the computer material pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms . The summary conviction appeal court reversed the decision, finding that there was no s. 8 breach. The Court of Appeal for Ontario set aside that decision and excluded the disc containing the temporary Internet files, the laptop and the mirror image of its hard drive. The disc containing the photographs of the student was found to be legally obtained and therefore admissible. As the trial judge had wrongly excluded this evidence, the Court of Appeal ordered a new trial.
Held (Abella J. dissenting): The appeal should be allowed. The exclusionary order of the Court of Appeal is set aside and the order of a new trial is affirmed.
Per McLachlin C.J., and LeBel, Fish, Rothstein, Cromwell and Moldaver JJ.: 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. Canadians may therefore reasonably expect privacy in the information contained on these computers, at least where personal use is permitted or reasonably expected. Ownership of property is a relevant consideration, but is not determinative. Workplace policies are also 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. 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. 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 police in this case infringed the accused’s rights under s. 8 of the Charter . The accused’s personal use of his work-issued laptop generated information that is meaningful, intimate, and organically connected to his biographical core. Pulling in the other direction are the ownership of the laptop by the school board, the workplace policies and practices, and the technology in place at the school. These considerations diminished the accused’s privacy interest in his laptop, at least in comparison to a personal computer, but they did not eliminate it entirely. On balance, the totality of the circumstances support the objective reasonableness of the accused’s subjective expectation of privacy. While 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, the lawful authority of the accused’s employer to seize and search the laptop did not furnish the police with the same power. Furthermore, a third party cannot validly consent to a search or otherwise waive a constitutional protection on behalf of another. The school board was 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 accused’s reasonable and subsisting expectation of privacy.
Unconstitutionally obtained evidence should be excluded under s. 24(2) if, considering all of the circumstances, its admission would bring the administration of justice into disrepute. The conduct of the police officer in this case was not an egregious breach of the Charter . While the police officer did attach great importance to the school board’s ownership of the laptop, he did not do so to the exclusion of other considerations. The officer sincerely, though erroneously, considered the accused’s Charter interests. Further, the officer had reasonable and probable grounds to obtain a warrant. Had he complied with the applicable constitutional requirements, the evidence would necessarily have been discovered. Finally, the evidence is highly reliable and probative physical evidence. The exclusion of the material would have a marked negative impact on the truth-seeking function of the criminal trial process. The admission of the evidence would not bring the administration of justice into disrepute and therefore the evidence should not be excluded.
Generally speaking, the decision to exclude evidence under s. 24(2) should be final. In very limited circumstances however, a material change of circumstances may justify a trial judge to revisit an exclusionary order. In this case, the Court of Appeal invited the trial judge to re-assess the admissibility of the temporary Internet files disc if the evidence becomes important to the truth-seeking function as the trial unfolds. Unconstitutionally obtained evidence, once excluded, will not become admissible simply because the Crown cannot otherwise satisfy its burden to prove the guilt of the accused beyond a reasonable doubt.
Per Abella J. (dissenting): While it is agreed that there has been a Charter breach, the evidence in this case should be excluded under s. 24(2). The Charter-infringing conduct in this case was serious in its disregard for central and well-established Charter standards. The police officer had years of experience in investigating cyber-crime and was expected to follow established Charter jurisprudence. Further, the police officer’s exclusive reliance on ownership to determine whether a warrant was required, was unreasonable and contradicted a finding of good faith for the purposes of s. 24(2). There were also no exigent circumstances or other legitimate reasons preventing the police from getting a warrant. The decision not to get a warrant mandates in favour of exclusion.
The impact of the breach on the accused’s Charter-protected interests, even assuming that his reasonable expectation of privacy was reduced because it was a workplace computer, was significant given the extent of the intrusion into his privacy. The warrantless search and seizure in this case included the entire contents of the accused’s computer. It had no restrictions as to scope. The extent of the search of the accused’s hard drive and browsing history was significant and weighs in favour of exclusion.
Finally, while the evidence in this case is reliable, its importance to the prosecution’s case is at best speculative given that the pornographic photographs themselves were admitted.
Balancing these factors, and in light of the deference owed to trial judges in applying s. 24(2), the evidence should be excluded.
Cases Cited
By Fish J.
Applied: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; referred to: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Evans, [1996] 1 S.C.R. 8; R. v. Borden, [1994] 3 S.C.R. 145; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Collins, [1987] 1 S.C.R. 265; R. v. M. (M.R.), [1998] 3 S.C.R. 393; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; O’Connor v. Ortega, 480 U.S. 709 (1987); R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211; R. v. Colarusso, [1994] 1 S.C.R. 20; Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708; R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757; R. v. D’Amour (2002), 166 C.C.C. (3d) 477; R. v. Dyment, [1988] 2 S.C.R. 417; United States v. Matlock, 415 U.S. 164 (1974); Illinois v. Rodriguez, 497 U.S. 177 (1990); United States v. Ziegler, 474 F.3d 1184 (2007); R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215; R. v. Belnavis, [1997] 3 S.C.R. 341; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v. Calder, [1996] 1 S.C.R. 660; R. v. Underwood, [1998] 1 S.C.R. 77; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Trask, [1987] 2 S.C.R. 304.
By Abella J. (dissenting)
R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Kokesch, [1990] 3 S.C.R. 3; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 8 , 24(2) .
Criminal Code , R.S.C. 1985, c. C‑46, ss. 163.1(4) , 342.1(1) .
Education Act, R.S.O. 1990, c. E.2, s. 265.
Authors Cited
Westin, Alan F. Privacy and Freedom. New York: Atheneum, 1970.
APPEAL from a judgment of the Ontario Court of Appeal (Winkler C.J.O. and Sharpe and Karakatsanis JJ.A.), 2011 ONCA 218, 105 O.R. (3d) 253, 277 O.A.C. 50, 231 C.R.R. (2d) 76, 269 C.C.C. (3d) 402, 83 C.R. (6th) 1, 2011 CLLC ¶210‑018, 90 C.C.E.L. (3d) 1, [2011] O.J. No. 1213 (QL), 2011 CarswellOnt 1766, setting aside a decision of Kane J. (2009), 190 C.R.R. (2d) 130, 2009 CanLII 20699, [2009] O.J. No. 1755 (QL), 2009 CarswellOnt 2251, setting aside a decision of Guay J., 2008 ONCJ 278, 175 C.R.R. (2d) 263, [2008] O.J. No. 2417 (QL), 2008 CarswellOnt 3601. Appeal allowed, Abella J. dissenting.
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.
The judgment of McLachlin C.J. and LeBel, Fish, Rothstein, Cromwell and Moldaver JJ. was delivered by
Fish J. —
I
[1] 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.
[2] 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 in Canada is constitutionally entitled to expect privacy in personal information of this kind.
[3] 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.
[4] Such was the case here. Mr. Cole, a high-school teacher, was permitted to use his work-issued laptop computer for incidental personal purposes. He did. He browsed the Internet and stored personal information on his hard drive.
[5] While performing maintenance activities, a technician found on Mr. Cole’s laptop a hidden folder containing nude and partially nude photographs of a female student. He notified the principal, and, under the latter’s discretion, copied the photographs to a compact disc or CD. The principal seized the laptop, and school board technicians copied the temporary Internet files onto a second CD. The laptop and both CDs were handed over to the police, who without a warrant reviewed their contents and then created a mirror image of the hard drive for forensic purposes.
[6] Mr. Cole was charged with possession of child pornography and unauthorized use of a computer, contrary to ss. 163.1(4) and 342.1(1) of the Criminal Code , R.S.C. 1985, c. C-46 , respectively, and prosecuted by way of summary conviction. The trial judge excluded all of the computer material pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms . The Crown offered no further evidence and the charges were therefore dismissed (2008 ONCJ 278, 175 C.R.R. (2d) 263).
[7] The summary conviction appeal court reversed the decision of the trial judge, finding that there was no s. 8 breach ((2009), 190 C.R.R. (2d) 130). The Court of Appeal for Ontario set aside that decision and excluded the disc containing the temporary Internet files, the laptop, and the mirror image of its hard drive (2011 ONCA 218, 105 O.R. (3d) 253).
[8] I agree with the Court of Appeal that the police infringed Mr. Cole’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 relevant 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.
[9] 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.
[10] The Crown in this case could point to no law authorizing the police to conduct, as they did, a warrantless search of Mr. Cole’s 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. And the school board’s “third party consent” to the search was of no legal consequence.
[11] Unlike the Court of Appeal, however, I would not exclude any of the unconstitutionally obtained evidence under s. 24(2).
[12] For these reasons and the reasons that follow, I would allow the appeal and set aside the decision of the Court of Appeal.
II
[13] The parties agree that Mr. Cole may face a new trial regardless of the outcome of this appeal: If the appeal is allowed, the Crown may proceed to a new trial with the benefit of all of the computer evidence excluded by the trial judge; if the Crown’s appeal is dismissed, the Crown can still return to trial, but only with regard to the disc containing the nude photographs.
[14] As a new trial may thus be had, I shall discuss the facts only to the extent necessary to explain my conclusion.
[15] Mr. Cole, as mentioned earlier, was a high-school teacher. In addition to his regular teaching duties, he was responsible for policing the use by students of their networked laptops. To this end, he was supplied with a laptop owned by the school board and accorded domain administration rights on the school’s network. This permitted him to access the hard drives of the students’ laptops.
[16] The use of Mr. Cole’s work-issued laptop was governed by the school board’s Policy and Procedures Manual, which allowed for incidental personal use of the board’s information technology. The policy stipulated that teachers’ e‑mail correspondence remained private, but subject to access by school administrators if specified conditions were met. It did not address privacy in other types of files, but it did state that “all data and messages generated on or handled by board equipment are considered to be the property of [the school board]”.
[17] There is evidence as well that the school’s Acceptable Use Policy — written for and signed by students — applied mutatis mutandis to teachers. This policy not only restricted the uses to which the students could put their laptops, but also warned users not to expect privacy in their files.
[18] Mr. Cole was not the only person who could remotely access networked laptops. School board technicians could do so as well. While performing maintenance activities, a school board technician found, on Mr. Cole’s laptop, a hidden folder containing nude and partially nude photographs of an underage female student.
[19] As mentioned earlier, the technician notified the principal, who directed him to copy the photographs to a compact disc. After discussing the matter with school board officials, the principal seized the laptop.
[20] At no time did Mr. Cole disclose his password. But he did ask the principal not to access a folder containing photographs of his wife.
[21] Technicians at the school board eventually gained access to Mr. Cole’s laptop and made a compact disc containing his temporary Internet files, which is said by the Crown to contain pornographic images.
[22] The next day, a police officer attended at the school and at the offices of the school board, where he took possession of the laptop and the two CDs: one containing photographs of the student; the other, Mr. Cole’s temporary Internet files. The officer reviewed the contents of both discs at the police station, and then sent the laptop away for forensic examination. A mirror image of the hard drive was created for that purpose.
[23] At no time did the officer obtain a warrant to search the laptop’s hard drive or either of the compact discs.
III
[24] Mr. Cole brought a pre-trial motion seeking exclusion of the computer evidence pursuant to s. 24(2) of the Charter . The trial judge found that the police had violated Mr. Cole’s s. 8 Charter rights, and, for that reason, he excluded all of the computer evidence. The summary conviction appeal court granted the Crown’s appeal, finding that Mr. Cole had no reasonable expectation of privacy in his work laptop.
[25] Mr. Cole appealed successfully to the Court of Appeal for Ontario. The Court of Appeal held that Mr. Cole had a reasonable expectation of privacy in the informational content of the laptop, but that this expectation was “modified to the extent that [Mr. Cole] knew that his employer’s technician could and would access the laptop as part of his role in maintaining the technical integrity of the school’s information network” (para. 47).
[26] On this approach, the initial remote access by the technician was not a “search” for the purposes of s. 8. But the examinations by the police, the principal, and the school board (assuming the Charter applied to the latter two) did engage s. 8.
[27] The Court of Appeal concluded that the search and seizure of the laptop by the principal and the school board was authorized by law and reasonable. The disc containing the photographs was thus created without breaching s. 8. And since Mr. Cole had no privacy interest in the photographs themselves, he had no legal basis to attack the search and seizure by the police of the disc to which they had been copied.
[28] The laptop and the disc with Mr. Cole’s temporary Internet files, however, involve different considerations. Mr. Cole had a continuing reasonable expectation of privacy in this material, and its seizure by school officials did not endow the police with their authority. Nor could the school board consent to the search by the police. As the police had no other lawful authority, the s. 8 breach was established.
[29] The Court of Appeal excluded the laptop and the mirror image of its hard drive pursuant to s. 24(2) of the Charter . The court also excluded the disc containing the Internet files, but only provisionally, 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” (para. 92).
[30] The disc containing the photographs of the student was legally obtained and therefore admissible. As the trial judge had wrongly excluded this evidence, the Court of Appeal ordered a new trial.
[31] The Crown appeals from the order excluding the laptop, its mirror image, and the Internet files disc. Mr. Cole does not challenge the admission, under ss. 8 and 24(2) of the Charter , of the disc containing the photographs, or the order of a new trial.
[32] This appeal thus raises three issues: (1) whether the Court of Appeal erred in concluding that Mr. Cole had a reasonable expectation of privacy in his employer-issued work computer; (2) whether the Court of Appeal erred in concluding that the search and seizure by the police of the laptop and the disc containing the Internet files was unreasonable within the meaning of s. 8 of the Charter ; and (3) whether the Court of Appeal erred in excluding the evidence under s. 24(2) of the Charter .
[33] I would answer the first two questions in the negative, but not the third.
IV
[34] Section 8 of the Charter guarantees the right of everyone in Canada to be secure against unreasonable search or seizure. An inspection is a search, and a taking is a seizure, where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access (R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18; R. v. Evans, [1996] 1 S.C.R. 8, at para. 11; R. v. Borden, [1994] 3 S.C.R. 145, at p. 160).
[35] Privacy is a matter of reasonable expectations. An expectation of privacy will attract Charter protection if reasonable and informed people in the position of the accused would expect privacy (R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at paras. 14-15).
[36] If the claimant has a reasonable expectation of privacy, s. 8 is engaged, and the court must then determine whether the search or seizure was reasonable.
[37] Where, as here, a search is carried out without a warrant, it is presumptively unreasonable (R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 21; Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 161). 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 (Nolet, at para. 21; R. v. Collins, [1987] 1 S.C.R. 265, at p. 278).
[38] Before applying this analytical framework here, I pause to explain why it is unnecessary on this appeal to decide whether the Charter applies to school officials. The Crown conceded in the courts below that it does. Like the Court of Appeal, I shall proceed on that assumption, as did Cory J. in R. v. M. (M.R.), [1998] 3 S.C.R. 393, at paras. 24-25.
V
[39] Whether Mr. Cole had a reasonable expectation of privacy depends on the “totality of the circumstances” (R. v. Edwards, [1996] 1 S.C.R. 128, at para. 45).
[40] The “totality of the 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 subject matter; and (4) an assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances (Tessling, at para. 32; Patrick, at para. 27). I will discuss each in turn.
[41] In this case, the subject matter of the alleged search is the data, or informational content of the laptop’s hard drive, its mirror image, and the Internet files disc — not the devices themselves.
[42] Our concern is thus with informational privacy: “[T]he claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others” (Tessling, at para. 23, quoting A. F. Westin, Privacy and Freedom (1970), at p. 7).
[43] Mr. Cole’s direct interest and subjective expectation of privacy in the informational content of his computer can readily be inferred from his use of the laptop to browse the Internet and to store personal information on the hard drive.
[44] The remaining question is whether Mr. Cole’s subjective expectation of privacy was objectively reasonable.
[45] There is no definitive list of factors that must be considered in answering this question, though some guidance may be derived from the relevant case law. As Sopinka J. explained in R. v. Plant, [1993] 3 S.C.R. 281, at p. 293:
In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual.
[46] The closer the subject matter of the alleged search lies to the biographical core of personal information, the more this factor will favour a reasonable expectation of privacy. Put another way, the more personal and confidential the information, the more willing reasonable and informed Canadians will be to recognize the existence of a constitutionally protected privacy interest.
[47] Computers that are used for personal purposes, regardless of where they are found or to whom they belong, “contain the details of our financial, medical, and personal situations” (Morelli, at para. 105). This is particularly the case where, as here, the computer is used to browse the Web. Internet-connected devices “reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet” (ibid.).
[48] This sort of private information falls at the very heart of the “biographical core” protected by s. 8 of the Charter .
[49] Like Morelli, this case involves highly revealing and meaningful information about an individual’s personal life — a factor strongly indicative of a reasonable expectation of privacy. Unlike in Morelli, however, this case involves a work-issued laptop and not a personal computer found in a private residence.
[50] The Policy and Procedures Manual of the school board asserted ownership over not only the hardware, but also the data stored on it: “Information technology systems and all data and messages generated on or handled by board equipment are considered to be the property of [the board], and are not the property of users of the information technology”.
[51] While the ownership of property is a relevant consideration, it is not determinative (R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 22). Nor should it carry undue weight within the contextual analysis. As Dickson J. (later C.J.) noted in Hunter, at p. 158, there is “nothing in the language of [s. 8] to restrict it to the protection of property or to associate it with the law of trespass”.
[52] 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 (O’Connor v. Ortega, 480 U.S. 709 (1987), at p. 717, per O’Connor J.).
[53] 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 (R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 34, per Deschamps J.).
[54] In this case, the operational realities of Mr. Cole’s workplace weigh both for and against the existence of a reasonable expectation of privacy. For, because written policy and actual practice permitted Mr. Cole 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.
[55] As mentioned earlier, the Policy and Procedures Manual stated that the school board owned “all data and messages generated on or handled by board equipment”. Moreover, the principal reminded teachers, annually, that the Acceptable Use Policy applied to them. This policy provided that “[t]eachers and administrators may monitor all student work and e-mail including material saved on laptop hard drives”, and warned that “[u]sers should NOT assume that files stored on network servers or hard drives of individual computers will be private”.
[56] Though Mr. Cole’s laptop was equipped with a password, the contents of his hard drive were thus available to all other users and technicians with domain administration rights — at least when the computer was connected to the network. And even if the Acceptable Use Policy did not directly apply to teachers, as Mr. Cole maintains, he and other teachers were in fact put on notice that the privacy they might otherwise have expected in their files was limited by the operational realities of their workplace.
[57] 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 Mr. Cole’s subjective expectation of privacy.
[58] The nature of the information in issue heavily favours recognition of a constitutionally protected privacy interest. Mr. Cole’s personal use of his work-issued laptop generated information that is meaningful, intimate, and organically connected to his biographical core. Pulling in the other direction, of course, are the ownership of the laptop by the school board, the workplace policies and practices, and the technology in place at the school. These considerations diminished Mr. Cole’s privacy interest in his laptop, at least in comparison to the personal computer at issue in Morelli, but they did not eliminate it entirely.
VI
[59] As Mr. Cole 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”.
[60] Mr. Cole does not challenge the initial inspection of the laptop by the school technician in the context of routine maintenance activities. He concedes, moreover, that the technician did not breach his s. 8 rights. In this light, I leave for another day the finer points of an employer’s right to monitor computers issued to employees.
[61] The Court of Appeal concluded that, in the circumstances of this case, the subsequent search and seizure of the laptop by school officials acting under the direction of the principal was not unreasonable within the meaning of s. 8 of the Charter . Mr. Cole does not challenge this conclusion.
[62] In any event, I agree with the Court of Appeal. The principal had a statutory duty to maintain a safe school environment (Education Act, R.S.O. 1990, c. E.2, s. 265), 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. This implied power is not unlike the one found by the majority of this Court in M. (M.R.), at para. 51.
[63] 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 (paras. 64-66).
[64] I turn then to the conduct of the police.
[65] 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 Mr. Cole, and without prior judicial authorization.
[66] 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.
[67] In taking possession of the computer material and examining its contents, the police acted independently of the school board (R. v. Colarusso, [1994] 1 S.C.R. 20, at pp. 58-60). 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.
[68] This was made clear in Colarusso, where a coroner who had lawfully seized bodily samples then turned them over to the police. As La Forest J. explained:
The arguments advanced by the Crown seeking to establish the reasonableness of warrantless seizures by a coroner rely on the underlying premise that the coroner fulfils an essential non-criminal role. The state cannot, however, have it both ways; it cannot be argued that the coroner’s seizure is reasonable because it is independent of the criminal law enforcement arm of the state while the state is at the same time attempting to introduce into criminal proceedings the very evidence seized by the coroner. It follows logically, in my opinion, that a seizure by a coroner will only be reasonable while the evidence is used for the purpose for which it was seized, namely, for determining whether an inquest into the death of the individual is warranted. Once the evidence has been appropriated by the criminal law enforcement arm of the state for use in criminal proceedings, there is no foundation on which to argue that the coroner’s seizure continues to be reasonable. [pp. 62-63]
[69] 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.
[70] The Crown relies on Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757, and R. v. D’Amour (2002), 166 C.C.C. (3d) 477 (Ont. C.A.), for the proposition that a warrant is not required for a regulatory authority to transfer material to law enforcement officers — and that this empowers the officers to examine the transferred materials without a warrant.
[71] I would reject this submission. All of the cases relied on by the Crown arose in heavily regulated environments. In each instance, given the regulated nature of the documents in question, the individual claiming the protection of s. 8 did not have a reasonable expectation of preventing or controlling the further dissemination of his or her information to the law enforcement branch of the state.
[72] No warrant was required because the claimants in the cases cited by the Crown, unlike Mr. Cole in this case, did not have a reasonable expectation of privacy in the information remitted to law enforcement officials. Mr. Cole, throughout, retained a reasonable and “continuous” expectation of privacy in the personal information on his work-issued laptop (Buhay, at para. 33 (emphasis added); R. v. Dyment, [1988] 2 S.C.R. 417, at p. 435).
[73] 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 Mr. Cole’s reasonable and subsisting expectation of privacy.
[74] The Crown alleges a second justification for the conduct of the police: third party consent. An employer (a third party), says the Crown, can validly consent to a warrantless search or seizure of a laptop issued to one of its employees. The underlying premise of this submission is that a third party may waive another person’s privacy interest — thereby disengaging that person’s guarantee under s. 8 of the Charter .
[75] In the United States, unlike in Canada, there is high authority for a doctrine of third party consent (United States v. Matlock, 415 U.S. 164 (1974); Illinois v. Rodriguez, 497 U.S. 177 (1990)).
[76] Matlock is premised on the notion that third party consent is justifiable because the individual voluntarily assumed the risk that his information would fall into the hands of law enforcement (see United States v. Ziegler, 474 F.3d 1184 (9th Circ. 2007), at p. 1191). However, this Court rejected that sort of “risk analysis” in R. v. Duarte, [1990] 1 S.C.R. 30, at pp. 47-48, and R. v. Won

Court headnote

R. v. Cole Collection Supreme Court Judgments Date 2012-10-19 Neutral citation 2012 SCC 53 Report [2012] 3 SCR 34 Case number 34268 Judges McLachlin, Beverley; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J. On appeal from Ontario Subjects Constitutional law Notes SCC Case Information: 34268 Decision Content SUPREME COURT OF CANADA Citation: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34 Date: 20121019 Docket: 34268 Between: Her Majesty The Queen Appellant and 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 Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell and Moldaver JJ. Reasons for Judgment: (paras. 1 to 106) Dissenting Reasons: (paras. 107 to 136) Fish J. (McLachlin C.J. and LeBel, Rothstein, Cromwell and Moldaver JJ. concurring) Abella J. R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34 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 Indexed as: R. v. Cole 2012 SCC 53 File No.: 34268. 2012: May 15; 2012: October 19. Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell and Moldaver JJ. on appeal from the court of appeal for ontario Constitutional law — Charter of Rights — Search and seizure — Information contained on computer — Pornographic pictures of child found on employer-issued work computer — Whether accused had reasonable expectation of privacy in employer-issued work computer — Whether warrantless search and seizure of laptop computer and disc containing Internet files breached accused’s rights under s. 8 of Charter — If so, whether evidence ought to be excluded pursuant to s. 24(2) of Charter . The accused, a high-school teacher, was charged with possession of child pornography and unauthorized use of a computer. He was permitted to use his work-issued laptop computer for incidental personal purposes which he did. While performing maintenance activities, a technician found on the accused’s laptop a hidden folder containing nude and partially nude photographs of an underage female student. The technician notified the principal, and copied the photographs to a compact disc. The principal seized the laptop, and school board technicians copied the temporary Internet files onto a second disc. The laptop and both discs were handed over to the police, who without a warrant reviewed their contents and then created a mirror image of the hard drive for forensic purposes. The trial judge excluded all of the computer material pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms . The summary conviction appeal court reversed the decision, finding that there was no s. 8 breach. The Court of Appeal for Ontario set aside that decision and excluded the disc containing the temporary Internet files, the laptop and the mirror image of its hard drive. The disc containing the photographs of the student was found to be legally obtained and therefore admissible. As the trial judge had wrongly excluded this evidence, the Court of Appeal ordered a new trial. Held (Abella J. dissenting): The appeal should be allowed. The exclusionary order of the Court of Appeal is set aside and the order of a new trial is affirmed. Per McLachlin C.J., and LeBel, Fish, Rothstein, Cromwell and Moldaver JJ.: 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. Canadians may therefore reasonably expect privacy in the information contained on these computers, at least where personal use is permitted or reasonably expected. Ownership of property is a relevant consideration, but is not determinative. Workplace policies are also 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. 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. 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 police in this case infringed the accused’s rights under s. 8 of the Charter . The accused’s personal use of his work-issued laptop generated information that is meaningful, intimate, and organically connected to his biographical core. Pulling in the other direction are the ownership of the laptop by the school board, the workplace policies and practices, and the technology in place at the school. These considerations diminished the accused’s privacy interest in his laptop, at least in comparison to a personal computer, but they did not eliminate it entirely. On balance, the totality of the circumstances support the objective reasonableness of the accused’s subjective expectation of privacy. While 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, the lawful authority of the accused’s employer to seize and search the laptop did not furnish the police with the same power. Furthermore, a third party cannot validly consent to a search or otherwise waive a constitutional protection on behalf of another. The school board was 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 accused’s reasonable and subsisting expectation of privacy. Unconstitutionally obtained evidence should be excluded under s. 24(2) if, considering all of the circumstances, its admission would bring the administration of justice into disrepute. The conduct of the police officer in this case was not an egregious breach of the Charter . While the police officer did attach great importance to the school board’s ownership of the laptop, he did not do so to the exclusion of other considerations. The officer sincerely, though erroneously, considered the accused’s Charter interests. Further, the officer had reasonable and probable grounds to obtain a warrant. Had he complied with the applicable constitutional requirements, the evidence would necessarily have been discovered. Finally, the evidence is highly reliable and probative physical evidence. The exclusion of the material would have a marked negative impact on the truth-seeking function of the criminal trial process. The admission of the evidence would not bring the administration of justice into disrepute and therefore the evidence should not be excluded. Generally speaking, the decision to exclude evidence under s. 24(2) should be final. In very limited circumstances however, a material change of circumstances may justify a trial judge to revisit an exclusionary order. In this case, the Court of Appeal invited the trial judge to re-assess the admissibility of the temporary Internet files disc if the evidence becomes important to the truth-seeking function as the trial unfolds. Unconstitutionally obtained evidence, once excluded, will not become admissible simply because the Crown cannot otherwise satisfy its burden to prove the guilt of the accused beyond a reasonable doubt. Per Abella J. (dissenting): While it is agreed that there has been a Charter breach, the evidence in this case should be excluded under s. 24(2). The Charter-infringing conduct in this case was serious in its disregard for central and well-established Charter standards. The police officer had years of experience in investigating cyber-crime and was expected to follow established Charter jurisprudence. Further, the police officer’s exclusive reliance on ownership to determine whether a warrant was required, was unreasonable and contradicted a finding of good faith for the purposes of s. 24(2). There were also no exigent circumstances or other legitimate reasons preventing the police from getting a warrant. The decision not to get a warrant mandates in favour of exclusion. The impact of the breach on the accused’s Charter-protected interests, even assuming that his reasonable expectation of privacy was reduced because it was a workplace computer, was significant given the extent of the intrusion into his privacy. The warrantless search and seizure in this case included the entire contents of the accused’s computer. It had no restrictions as to scope. The extent of the search of the accused’s hard drive and browsing history was significant and weighs in favour of exclusion. Finally, while the evidence in this case is reliable, its importance to the prosecution’s case is at best speculative given that the pornographic photographs themselves were admitted. Balancing these factors, and in light of the deference owed to trial judges in applying s. 24(2), the evidence should be excluded. Cases Cited By Fish J. Applied: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; referred to: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Evans, [1996] 1 S.C.R. 8; R. v. Borden, [1994] 3 S.C.R. 145; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Collins, [1987] 1 S.C.R. 265; R. v. M. (M.R.), [1998] 3 S.C.R. 393; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; O’Connor v. Ortega, 480 U.S. 709 (1987); R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211; R. v. Colarusso, [1994] 1 S.C.R. 20; Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708; R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757; R. v. D’Amour (2002), 166 C.C.C. (3d) 477; R. v. Dyment, [1988] 2 S.C.R. 417; United States v. Matlock, 415 U.S. 164 (1974); Illinois v. Rodriguez, 497 U.S. 177 (1990); United States v. Ziegler, 474 F.3d 1184 (2007); R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215; R. v. Belnavis, [1997] 3 S.C.R. 341; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v. Calder, [1996] 1 S.C.R. 660; R. v. Underwood, [1998] 1 S.C.R. 77; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Trask, [1987] 2 S.C.R. 304. By Abella J. (dissenting) R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Kokesch, [1990] 3 S.C.R. 3; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms , ss. 8 , 24(2) . Criminal Code , R.S.C. 1985, c. C‑46, ss. 163.1(4) , 342.1(1) . Education Act, R.S.O. 1990, c. E.2, s. 265. Authors Cited Westin, Alan F. Privacy and Freedom. New York: Atheneum, 1970. APPEAL from a judgment of the Ontario Court of Appeal (Winkler C.J.O. and Sharpe and Karakatsanis JJ.A.), 2011 ONCA 218, 105 O.R. (3d) 253, 277 O.A.C. 50, 231 C.R.R. (2d) 76, 269 C.C.C. (3d) 402, 83 C.R. (6th) 1, 2011 CLLC ¶210‑018, 90 C.C.E.L. (3d) 1, [2011] O.J. No. 1213 (QL), 2011 CarswellOnt 1766, setting aside a decision of Kane J. (2009), 190 C.R.R. (2d) 130, 2009 CanLII 20699, [2009] O.J. No. 1755 (QL), 2009 CarswellOnt 2251, setting aside a decision of Guay J., 2008 ONCJ 278, 175 C.R.R. (2d) 263, [2008] O.J. No. 2417 (QL), 2008 CarswellOnt 3601. Appeal allowed, Abella J. dissenting. 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. The judgment of McLachlin C.J. and LeBel, Fish, Rothstein, Cromwell and Moldaver JJ. was delivered by Fish J. — I [1] 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. [2] 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 in Canada is constitutionally entitled to expect privacy in personal information of this kind. [3] 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. [4] Such was the case here. Mr. Cole, a high-school teacher, was permitted to use his work-issued laptop computer for incidental personal purposes. He did. He browsed the Internet and stored personal information on his hard drive. [5] While performing maintenance activities, a technician found on Mr. Cole’s laptop a hidden folder containing nude and partially nude photographs of a female student. He notified the principal, and, under the latter’s discretion, copied the photographs to a compact disc or CD. The principal seized the laptop, and school board technicians copied the temporary Internet files onto a second CD. The laptop and both CDs were handed over to the police, who without a warrant reviewed their contents and then created a mirror image of the hard drive for forensic purposes. [6] Mr. Cole was charged with possession of child pornography and unauthorized use of a computer, contrary to ss. 163.1(4) and 342.1(1) of the Criminal Code , R.S.C. 1985, c. C-46 , respectively, and prosecuted by way of summary conviction. The trial judge excluded all of the computer material pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms . The Crown offered no further evidence and the charges were therefore dismissed (2008 ONCJ 278, 175 C.R.R. (2d) 263). [7] The summary conviction appeal court reversed the decision of the trial judge, finding that there was no s. 8 breach ((2009), 190 C.R.R. (2d) 130). The Court of Appeal for Ontario set aside that decision and excluded the disc containing the temporary Internet files, the laptop, and the mirror image of its hard drive (2011 ONCA 218, 105 O.R. (3d) 253). [8] I agree with the Court of Appeal that the police infringed Mr. Cole’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 relevant 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. [9] 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. [10] The Crown in this case could point to no law authorizing the police to conduct, as they did, a warrantless search of Mr. Cole’s 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. And the school board’s “third party consent” to the search was of no legal consequence. [11] Unlike the Court of Appeal, however, I would not exclude any of the unconstitutionally obtained evidence under s. 24(2). [12] For these reasons and the reasons that follow, I would allow the appeal and set aside the decision of the Court of Appeal. II [13] The parties agree that Mr. Cole may face a new trial regardless of the outcome of this appeal: If the appeal is allowed, the Crown may proceed to a new trial with the benefit of all of the computer evidence excluded by the trial judge; if the Crown’s appeal is dismissed, the Crown can still return to trial, but only with regard to the disc containing the nude photographs. [14] As a new trial may thus be had, I shall discuss the facts only to the extent necessary to explain my conclusion. [15] Mr. Cole, as mentioned earlier, was a high-school teacher. In addition to his regular teaching duties, he was responsible for policing the use by students of their networked laptops. To this end, he was supplied with a laptop owned by the school board and accorded domain administration rights on the school’s network. This permitted him to access the hard drives of the students’ laptops. [16] The use of Mr. Cole’s work-issued laptop was governed by the school board’s Policy and Procedures Manual, which allowed for incidental personal use of the board’s information technology. The policy stipulated that teachers’ e‑mail correspondence remained private, but subject to access by school administrators if specified conditions were met. It did not address privacy in other types of files, but it did state that “all data and messages generated on or handled by board equipment are considered to be the property of [the school board]”. [17] There is evidence as well that the school’s Acceptable Use Policy — written for and signed by students — applied mutatis mutandis to teachers. This policy not only restricted the uses to which the students could put their laptops, but also warned users not to expect privacy in their files. [18] Mr. Cole was not the only person who could remotely access networked laptops. School board technicians could do so as well. While performing maintenance activities, a school board technician found, on Mr. Cole’s laptop, a hidden folder containing nude and partially nude photographs of an underage female student. [19] As mentioned earlier, the technician notified the principal, who directed him to copy the photographs to a compact disc. After discussing the matter with school board officials, the principal seized the laptop. [20] At no time did Mr. Cole disclose his password. But he did ask the principal not to access a folder containing photographs of his wife. [21] Technicians at the school board eventually gained access to Mr. Cole’s laptop and made a compact disc containing his temporary Internet files, which is said by the Crown to contain pornographic images. [22] The next day, a police officer attended at the school and at the offices of the school board, where he took possession of the laptop and the two CDs: one containing photographs of the student; the other, Mr. Cole’s temporary Internet files. The officer reviewed the contents of both discs at the police station, and then sent the laptop away for forensic examination. A mirror image of the hard drive was created for that purpose. [23] At no time did the officer obtain a warrant to search the laptop’s hard drive or either of the compact discs. III [24] Mr. Cole brought a pre-trial motion seeking exclusion of the computer evidence pursuant to s. 24(2) of the Charter . The trial judge found that the police had violated Mr. Cole’s s. 8 Charter rights, and, for that reason, he excluded all of the computer evidence. The summary conviction appeal court granted the Crown’s appeal, finding that Mr. Cole had no reasonable expectation of privacy in his work laptop. [25] Mr. Cole appealed successfully to the Court of Appeal for Ontario. The Court of Appeal held that Mr. Cole had a reasonable expectation of privacy in the informational content of the laptop, but that this expectation was “modified to the extent that [Mr. Cole] knew that his employer’s technician could and would access the laptop as part of his role in maintaining the technical integrity of the school’s information network” (para. 47). [26] On this approach, the initial remote access by the technician was not a “search” for the purposes of s. 8. But the examinations by the police, the principal, and the school board (assuming the Charter applied to the latter two) did engage s. 8. [27] The Court of Appeal concluded that the search and seizure of the laptop by the principal and the school board was authorized by law and reasonable. The disc containing the photographs was thus created without breaching s. 8. And since Mr. Cole had no privacy interest in the photographs themselves, he had no legal basis to attack the search and seizure by the police of the disc to which they had been copied. [28] The laptop and the disc with Mr. Cole’s temporary Internet files, however, involve different considerations. Mr. Cole had a continuing reasonable expectation of privacy in this material, and its seizure by school officials did not endow the police with their authority. Nor could the school board consent to the search by the police. As the police had no other lawful authority, the s. 8 breach was established. [29] The Court of Appeal excluded the laptop and the mirror image of its hard drive pursuant to s. 24(2) of the Charter . The court also excluded the disc containing the Internet files, but only provisionally, 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” (para. 92). [30] The disc containing the photographs of the student was legally obtained and therefore admissible. As the trial judge had wrongly excluded this evidence, the Court of Appeal ordered a new trial. [31] The Crown appeals from the order excluding the laptop, its mirror image, and the Internet files disc. Mr. Cole does not challenge the admission, under ss. 8 and 24(2) of the Charter , of the disc containing the photographs, or the order of a new trial. [32] This appeal thus raises three issues: (1) whether the Court of Appeal erred in concluding that Mr. Cole had a reasonable expectation of privacy in his employer-issued work computer; (2) whether the Court of Appeal erred in concluding that the search and seizure by the police of the laptop and the disc containing the Internet files was unreasonable within the meaning of s. 8 of the Charter ; and (3) whether the Court of Appeal erred in excluding the evidence under s. 24(2) of the Charter . [33] I would answer the first two questions in the negative, but not the third. IV [34] Section 8 of the Charter guarantees the right of everyone in Canada to be secure against unreasonable search or seizure. An inspection is a search, and a taking is a seizure, where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access (R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18; R. v. Evans, [1996] 1 S.C.R. 8, at para. 11; R. v. Borden, [1994] 3 S.C.R. 145, at p. 160). [35] Privacy is a matter of reasonable expectations. An expectation of privacy will attract Charter protection if reasonable and informed people in the position of the accused would expect privacy (R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at paras. 14-15). [36] If the claimant has a reasonable expectation of privacy, s. 8 is engaged, and the court must then determine whether the search or seizure was reasonable. [37] Where, as here, a search is carried out without a warrant, it is presumptively unreasonable (R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 21; Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 161). 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 (Nolet, at para. 21; R. v. Collins, [1987] 1 S.C.R. 265, at p. 278). [38] Before applying this analytical framework here, I pause to explain why it is unnecessary on this appeal to decide whether the Charter applies to school officials. The Crown conceded in the courts below that it does. Like the Court of Appeal, I shall proceed on that assumption, as did Cory J. in R. v. M. (M.R.), [1998] 3 S.C.R. 393, at paras. 24-25. V [39] Whether Mr. Cole had a reasonable expectation of privacy depends on the “totality of the circumstances” (R. v. Edwards, [1996] 1 S.C.R. 128, at para. 45). [40] The “totality of the 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 subject matter; and (4) an assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances (Tessling, at para. 32; Patrick, at para. 27). I will discuss each in turn. [41] In this case, the subject matter of the alleged search is the data, or informational content of the laptop’s hard drive, its mirror image, and the Internet files disc — not the devices themselves. [42] Our concern is thus with informational privacy: “[T]he claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others” (Tessling, at para. 23, quoting A. F. Westin, Privacy and Freedom (1970), at p. 7). [43] Mr. Cole’s direct interest and subjective expectation of privacy in the informational content of his computer can readily be inferred from his use of the laptop to browse the Internet and to store personal information on the hard drive. [44] The remaining question is whether Mr. Cole’s subjective expectation of privacy was objectively reasonable. [45] There is no definitive list of factors that must be considered in answering this question, though some guidance may be derived from the relevant case law. As Sopinka J. explained in R. v. Plant, [1993] 3 S.C.R. 281, at p. 293: In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. [46] The closer the subject matter of the alleged search lies to the biographical core of personal information, the more this factor will favour a reasonable expectation of privacy. Put another way, the more personal and confidential the information, the more willing reasonable and informed Canadians will be to recognize the existence of a constitutionally protected privacy interest. [47] Computers that are used for personal purposes, regardless of where they are found or to whom they belong, “contain the details of our financial, medical, and personal situations” (Morelli, at para. 105). This is particularly the case where, as here, the computer is used to browse the Web. Internet-connected devices “reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet” (ibid.). [48] This sort of private information falls at the very heart of the “biographical core” protected by s. 8 of the Charter . [49] Like Morelli, this case involves highly revealing and meaningful information about an individual’s personal life — a factor strongly indicative of a reasonable expectation of privacy. Unlike in Morelli, however, this case involves a work-issued laptop and not a personal computer found in a private residence. [50] The Policy and Procedures Manual of the school board asserted ownership over not only the hardware, but also the data stored on it: “Information technology systems and all data and messages generated on or handled by board equipment are considered to be the property of [the board], and are not the property of users of the information technology”. [51] While the ownership of property is a relevant consideration, it is not determinative (R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 22). Nor should it carry undue weight within the contextual analysis. As Dickson J. (later C.J.) noted in Hunter, at p. 158, there is “nothing in the language of [s. 8] to restrict it to the protection of property or to associate it with the law of trespass”. [52] 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 (O’Connor v. Ortega, 480 U.S. 709 (1987), at p. 717, per O’Connor J.). [53] 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 (R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 34, per Deschamps J.). [54] In this case, the operational realities of Mr. Cole’s workplace weigh both for and against the existence of a reasonable expectation of privacy. For, because written policy and actual practice permitted Mr. Cole 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. [55] As mentioned earlier, the Policy and Procedures Manual stated that the school board owned “all data and messages generated on or handled by board equipment”. Moreover, the principal reminded teachers, annually, that the Acceptable Use Policy applied to them. This policy provided that “[t]eachers and administrators may monitor all student work and e-mail including material saved on laptop hard drives”, and warned that “[u]sers should NOT assume that files stored on network servers or hard drives of individual computers will be private”. [56] Though Mr. Cole’s laptop was equipped with a password, the contents of his hard drive were thus available to all other users and technicians with domain administration rights — at least when the computer was connected to the network. And even if the Acceptable Use Policy did not directly apply to teachers, as Mr. Cole maintains, he and other teachers were in fact put on notice that the privacy they might otherwise have expected in their files was limited by the operational realities of their workplace. [57] 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 Mr. Cole’s subjective expectation of privacy. [58] The nature of the information in issue heavily favours recognition of a constitutionally protected privacy interest. Mr. Cole’s personal use of his work-issued laptop generated information that is meaningful, intimate, and organically connected to his biographical core. Pulling in the other direction, of course, are the ownership of the laptop by the school board, the workplace policies and practices, and the technology in place at the school. These considerations diminished Mr. Cole’s privacy interest in his laptop, at least in comparison to the personal computer at issue in Morelli, but they did not eliminate it entirely. VI [59] As Mr. Cole 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”. [60] Mr. Cole does not challenge the initial inspection of the laptop by the school technician in the context of routine maintenance activities. He concedes, moreover, that the technician did not breach his s. 8 rights. In this light, I leave for another day the finer points of an employer’s right to monitor computers issued to employees. [61] The Court of Appeal concluded that, in the circumstances of this case, the subsequent search and seizure of the laptop by school officials acting under the direction of the principal was not unreasonable within the meaning of s. 8 of the Charter . Mr. Cole does not challenge this conclusion. [62] In any event, I agree with the Court of Appeal. The principal had a statutory duty to maintain a safe school environment (Education Act, R.S.O. 1990, c. E.2, s. 265), 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. This implied power is not unlike the one found by the majority of this Court in M. (M.R.), at para. 51. [63] 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 (paras. 64-66). [64] I turn then to the conduct of the police. [65] 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 Mr. Cole, and without prior judicial authorization. [66] 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. [67] In taking possession of the computer material and examining its contents, the police acted independently of the school board (R. v. Colarusso, [1994] 1 S.C.R. 20, at pp. 58-60). 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. [68] This was made clear in Colarusso, where a coroner who had lawfully seized bodily samples then turned them over to the police. As La Forest J. explained: The arguments advanced by the Crown seeking to establish the reasonableness of warrantless seizures by a coroner rely on the underlying premise that the coroner fulfils an essential non-criminal role. The state cannot, however, have it both ways; it cannot be argued that the coroner’s seizure is reasonable because it is independent of the criminal law enforcement arm of the state while the state is at the same time attempting to introduce into criminal proceedings the very evidence seized by the coroner. It follows logically, in my opinion, that a seizure by a coroner will only be reasonable while the evidence is used for the purpose for which it was seized, namely, for determining whether an inquest into the death of the individual is warranted. Once the evidence has been appropriated by the criminal law enforcement arm of the state for use in criminal proceedings, there is no foundation on which to argue that the coroner’s seizure continues to be reasonable. [pp. 62-63] [69] 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. [70] The Crown relies on Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757, and R. v. D’Amour (2002), 166 C.C.C. (3d) 477 (Ont. C.A.), for the proposition that a warrant is not required for a regulatory authority to transfer material to law enforcement officers — and that this empowers the officers to examine the transferred materials without a warrant. [71] I would reject this submission. All of the cases relied on by the Crown arose in heavily regulated environments. In each instance, given the regulated nature of the documents in question, the individual claiming the protection of s. 8 did not have a reasonable expectation of preventing or controlling the further dissemination of his or her information to the law enforcement branch of the state. [72] No warrant was required because the claimants in the cases cited by the Crown, unlike Mr. Cole in this case, did not have a reasonable expectation of privacy in the information remitted to law enforcement officials. Mr. Cole, throughout, retained a reasonable and “continuous” expectation of privacy in the personal information on his work-issued laptop (Buhay, at para. 33 (emphasis added); R. v. Dyment, [1988] 2 S.C.R. 417, at p. 435). [73] 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 Mr. Cole’s reasonable and subsisting expectation of privacy. [74] The Crown alleges a second justification for the conduct of the police: third party consent. An employer (a third party), says the Crown, can validly consent to a warrantless search or seizure of a laptop issued to one of its employees. The underlying premise of this submission is that a third party may waive another person’s privacy interest — thereby disengaging that person’s guarantee under s. 8 of the Charter . [75] In the United States, unlike in Canada, there is high authority for a doctrine of third party consent (United States v. Matlock, 415 U.S. 164 (1974); Illinois v. Rodriguez, 497 U.S. 177 (1990)). [76] Matlock is premised on the notion that third party consent is justifiable because the individual voluntarily assumed the risk that his information would fall into the hands of law enforcement (see United States v. Ziegler, 474 F.3d 1184 (9th Circ. 2007), at p. 1191). However, this Court rejected that sort of “risk analysis” in R. v. Duarte, [1990] 1 S.C.R. 30, at pp. 47-48, and R. v. Won

R. v. Cole

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