The Supreme Court of Canada is examining the case of a Sudbury, Ont., high school teacher who was charged after sexually explicit photos were found on a school-issued laptop he was using.
Richard Cole, a computer science teacher, was charged with possession of child pornography and unauthorized use of a computer after the school board’s IT staff found nude photos of a female student on the computer.
The student had sent the photos to another student, her boyfriend, via email. In the course of his monitoring duties, Cole teacher had accessed the male student’s email account, found the photographs, and copied them onto his computer.
In his supervisory role, the teacher was able to remotely access the data stored on student computers within the school network.
In the Ontario Court of Justice, evidence was excluded under Section 24(2) of the Charter of Rights. The judge determined that the teacher had a reasonable expectation of privacy regarding the contents of his laptop hard drive. The judge also said the warrantless search and seizure of the material by police constituted a breach of his Section 8 Charter rights.
On appeal to the Superior Court of Justice, the trial judge’s decision was overturned and sent back for retrial, since the appeal judge found that there was no reasonable expectation of privacy in the contents of the laptop’s hard drive. The teacher appealed this decision to the Ontario Court of Appeal, which allowed the appeal in part and sent the matter back for trial.
The Crown is hoping the Supreme Court will rule that all pertinent files from the laptop can be admitted as evidence.
The case went to the top court on Tuesday.
Privacy concerns raised
The Court of Appeal had raised privacy concerns regarding files from Cole's personal internet browsing. But the court also found the image files found by the school’s technician were acceptable as evidence because the technician’s search was part of normal maintenance procedure and not beyond reasonable expectations of privacy for the laptop.
The technician also only searched and copied the images and didn’t delve further into the teacher's personal files.
Some legal analysts say Crown lawyers could argue that the expectation of privacy is diminished with an employer-issued work computer.
Investigators who copied the computer's hard drive without obtaining a warrant said they believed they had the authority to conduct a search because the computer was school board property.
The Rainbow District School Board last year said it no longer employs the computer science teacher but provided no other details.