
SUPREME
COURT OF CANADA
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. Wong, [1990] 3 S.C.R. 36, at
p. 45.
[77]
Moreover, the doctrine of third party consent is
inconsistent with this Court’s jurisprudence on first party consent. As
Iacobucci J. explained in Borden, at p. 162, “[i]n order for a waiver of
the right to be secure against an unreasonable seizure to be effective, the
person purporting to consent must be possessed of the requisite informational
foundation for a true relinquishment of the right.”
[78]
For consent to be valid, it must be both
voluntary and informed. The adoption of a doctrine of third party consent in
this country would imply that the police could interfere with an individual’s
privacy interests on the basis of a consent that is not voluntarily
given by the rights holder, and not necessarily based on sufficient
information in his or her hands to make a meaningful choice.
[79]
I would therefore reject the Crown’s contention
that a third party could validly consent to a search or otherwise waive a
constitutional protection on behalf of another.
VII
[80]
With the Charter breach established, the
inquiry shifts to s. 24(2) .
[81]
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. This determination
requires a balancing assessment involving three broad inquiries: (1) the
seriousness of the Charter -infringing state conduct; (2) the impact of
the breach on the Charter -protected interests of the accused; and (3)
society’s interest in the adjudication of the case on its merits (R. v.
Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71).
[82]
The standard of review is deferential: “Where a
trial judge has considered the proper factors and has not made any unreasonable
finding, his or her determination is owed considerable deference on appellate
review” (R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44).
But where the relevant factors have been overlooked or disregarded, a fresh Grant
analysis is both necessary and appropriate.
[83]
Both the trial judge and the Court of Appeal —
erroneously, in my respectful view — excluded the unconstitutionally obtained
evidence pursuant to s. 24(2) of the Charter .
[84]
Regarding the seriousness of the Charter -infringing
conduct, the courts below focused on the actions of Detective Constable Timothy
Burtt, the officer who took possession of the computer material, who searched
the discs, and who sent the laptop away for forensic examination. The trial
judge concluded that this officer’s actions were “egregious” (para. 26), and
the Court of Appeal considered his conduct serious enough to favour exclusion.
[85]
I am unable to share either conclusion.
[86]
The police officer did not knowingly or
deliberately disregard the warrant requirement. As events were unfolding in
this case, the law governing privacy expectations in work computers was still
unsettled. Without the guidance of appellate case law, D.C. Burtt believed,
erroneously but understandably, that he had the power to search without a
warrant.
[87]
He did not act negligently or in bad faith. Nor
does his conduct evidence insensitivity to Charter values, or an
unacceptable ignorance of Mr. Cole’s rights under the Charter . The
officer did not rely exclusively, as the courts below suggested, on his
mistaken belief that the ownership of the laptop was necessarily
determinative. While this was an important factor underlying his decision not
to obtain a search warrant, the officer also turned his mind to whether Mr.
Cole had an expectation of privacy in the laptop (p. 130). He was alert to the
possibility that the hard drive contained private or privileged material (pp.
130-31 and 164). And he testified that he intended to respect Mr. Cole’s
privacy interest in this regard (p. 131).
[88]
More particularly, D.C.
Burtt testified as follows:
Q. Did you consider whether or not Richard Cole
had any expectation of privacy in that computer?
A. I did consider that. The information that I
was receiving was that it was the School Board’s computer and that was their
property. I had never received any information in regards to Mr. Cole owning
that computer or that he had any privileged material. And I’ve dealt
with cases where there have been privileged material on a laptop or on a
computer. And the only information I had received about any private material
that was on that computer came from Mr. Bourget and that was in regards to some
images of Mr. Cole’s — personal images of his wife and that was the only
information I had in regards to any private information there.
Q. And having received that information
that there may be images of his wife on the laptop, would you respect
that any privacy interest in those photographs?
A. Yes, sir. Business computer or any
computers may have some personal stuff on there. [Emphasis added.]
[89]
What of the fact that the officer had reasonable
and probable grounds to obtain a warrant? In some circumstances, this may
aggravate the seriousness of the breach (Côté, at para. 71). Where a
police officer could have acted constitutionally but did not, this might
indicate that the officer adopted a casual attitude toward — or, still worse,
deliberately flouted — the individual’s Charter rights (Buhay, at
paras. 63-64). But that is not this case: The officer, as mentioned earlier,
appears to have sincerely, though erroneously, considered Mr. Cole’s Charter
interests.
[90]
Accordingly, in my view, the trial judge’s
finding of “egregious” conduct was tainted by clear and determinative error (Côté,
at para. 51). On the undisputed evidence, the conduct of the officer was
simply not an egregious breach of the Charter . As earlier seen, the
officer did attach great importance to the school board’s ownership of the
laptop, but not to the exclusion of other considerations. He did not “confuse
ownership of hardware with privacy in the contents of software” (trial reasons,
at para. 29).
[91]
Turning then to the impact of the breach on Mr.
Cole’s Charter -protected interests, the question relates to “the extent
to which the breach actually undermined the interests protected by the right
infringed” (Grant, at para. 76). In the context of a s. 8 breach,
as here, the focus is on the magnitude or intensity of the individual’s
reasonable expectation of privacy, and on whether the search demeaned his or
her dignity (R. v. Belnavis, [1997] 3 S.C.R. 341, at para. 40; Grant,
at para. 78).
[92]
In his s. 24(2)
analysis, the trial judge neglected entirely to consider the diminished nature
of Mr. Cole’s reasonable expectation of privacy. Likewise, the Court of Appeal
overlooked the fact that the operational realities of Mr. Cole’s workplace attenuated
the effect of the breach on his Charter -protected interests.
[93]
Moreover, the courts below failed to consider the impact of the
“discoverability” of the computer evidence on the second Grant inquiry.
As earlier noted, 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. This further attenuated the impact of
the breach on Mr. Cole’s Charter -protected interests (Côté, at para.
72).
[94]
Finally, I turn to the third Grant inquiry:
society’s interest in an adjudication on the merits. The question is “whether
the truth-seeking function of the criminal trial process would be better served
by admission of the evidence, or by its exclusion” (Grant, at para. 79).
[95]
Not unlike the considerations under the first
and second inquiries, the considerations under this third inquiry must not be
permitted to overwhelm the s. 24(2) analysis (Côté, at para. 48; R.
v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 40). They are
nonetheless entitled to appropriate weight and, in the circumstances of this
case, they clearly weigh against exclusion of the evidence.
[96]
The laptop, the mirror image of its hard drive,
and the disc containing Mr. Cole’s temporary Internet files are all highly
reliable and probative physical evidence. And while excluding it would not
“gut” the prosecution entirely, I accept the Crown’s submission that the
forensic examination of the laptop, at least, is “critical”: the metadata on
the laptop may allow the Crown to establish, for example, when the photographs
were downloaded and whether they have ever been accessed.
[97]
In sum, the admission of the evidence would not
bring the administration of justice into disrepute. The breach was not high on
the scale of seriousness, and its impact was attenuated by both the diminished
privacy interest and the discoverability of the evidence. The exclusion of the
material would, however, have a marked negative impact on the truth-seeking
function of the criminal trial process.
[98]
For all of these reasons, I would not exclude
the evidence unlawfully obtained by the police in this case.
VIII
[99]
Having concluded that none of the computer
evidence should have been excluded pursuant to s. 24(2) , it is not strictly
necessary to address the provisional nature of the Court of Appeal’s ruling in
respect of the Internet files disc. Nevertheless, I find it appropriate to do
so.
[100]
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 (R. v. Calder, [1996] 1 S.C.R. 660, at
para. 35).
[101]
For reasons of principle and of practice, the
exclusion of evidence should generally be final. As the intervener Criminal
Lawyers’ Association (Ontario) points out, an accused is entitled, as a matter
of principle, to know the case to meet. If an exclusionary order is revisited
after the Crown closes its case, this principle is necessarily undermined. If
the case to meet continues to shift, the prejudice is obvious and the trial
might well become unmanageable (R. v. Underwood, [1998] 1 S.C.R. 77, at
paras. 6-7).
[102]
Moreover, even when an exclusionary order is
revisited before the Crown closes its case, there is 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 has been excluded —
risk being undercut. It would be extraordinarily difficult for a trial court
to remedy this sort of prejudice.
[103]
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” (para. 92).
[104]
In my respectful view, this would not — at least
not on its own — qualify as “very limited circumstances” justifying an
exception to the rule. 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.
IX
[105]
As stated at the outset, I would allow the
appeal, set aside the exclusionary order of the Court of Appeal, and affirm the
order of a new trial.
[106]
Mr. Cole asks that he be awarded his costs
regardless of the outcome of the appeal. While the Court has the discretion to
make such an order, I would decline to do so. There is nothing “remarkable”
about this case ― the principal
criterion ― and there was
no allegation of “oppressive or improper conduct” on the part of the Crown (R.
v. Trask, [1987] 2 S.C.R. 304, at p. 308; R. v. M. (C.A.), [1996] 1
S.C.R. 500, at para. 97).
The
following are the reasons delivered by
[107]
Abella J. (dissenting) — While I agree with Justice
Fish that there has been a Charter breach, in my respectful view, like
Justice Karakatsanis in the Court of Appeal, I would exclude the disc
containing the temporary Internet files and the copy of the hard drive.
[108]
In R. v. Morelli, [2010] 1 S.C.R. 253,
Fish J. observed that “it is difficult to imagine a more intrusive invasion of
privacy than the search of one’s home and personal computer” (para. 105).
Workplace computers, while clearly engaging different considerations,
nonetheless attract many of the same privacy concerns as home computers.
[109]
Workplace computers are increasingly given to
employees for their exclusive use, and employees are allowed — and often expected — to use them away from the workplace for
both work-related and personal use. And as more data is stored in the cloud
and accessed on both workplace and personal computers, the ownership of the
device or the data, far from being determinative of the reasonable expectation
of privacy, becomes an increasingly unhelpful marker. In deciding whether to
exclude evidence illegally seized from workplace computers, this blurring of
the line between personal and workplace usage should inform the analysis.
[110]
Three considerations come into play in this case
in determining whether to exclude the evidence. The first is the seriousness
of the Charter -infringing state conduct, which looks at whether
the police acted in good faith based on their presumed knowledge of the law.
Detective Constable Burtt, an experienced officer with years of experience in
investigating cyber-crime, was expected to follow established Charter
jurisprudence. His failure to do so, in my view, represents a serious breach.
[111]
This Court’s decision in R. v. Kokesch, [1990] 3 S.C.R. 3, is particularly helpful. In that case, the Court decided that a
perimeter search of the accused’s residence violated s. 8 of the Charter .
Prior to Kokesch, it was unclear whether such a search violated the Charter .
Nonetheless, the Court excluded the impugned evidence, noting that the law of
trespass was firmly settled, and that the police “ought to have known”
that they were trespassing. In the words of Sopinka J.:
I
do not wish to be understood as imposing upon the police a burden of instant
interpretation of court decisions. The question of the length of time after a
judgment that ought to be permitted to pass before knowledge of its content is
attributed to the police for the purposes of assessing good faith is an
interesting one, but it does not arise on these facts. The police here had
the benefit of slightly more than twelve years to study Eccles, slightly
less than six years to consider Colet, and slightly more than two years
to digest the constitutional warrant requirement set out in Hunter. Any
doubt they may have had about their ability to trespass in the absence of
specific statutory authority to do so was manifestly unreasonable, and cannot,
as a matter of law, be relied upon as good faith for the purposes of s. 24(2) .
[Emphasis added; p. 33.]
[112]
In other words, the Court concluded that if, in
conducting their search, the police disregarded settled law, any specific
uncertainty in the law becomes far less determinative. Otherwise, it would
open the door too widely for the admission of evidence under s. 24(2) .
[113]
In this case, the trial judge found that D.C.
Burtt assumed that “because the laptop belonged to the Rainbow District School
Board, there was no need for him to get a warrant”. To borrow from Kokesch,
D.C. Burtt’s exclusive reliance on ownership to determine whether a warrant was
required was unreasonable and cannot be relied on as good faith for the
purposes of s. 24(2) .
[114]
While the law relating to the search of
workplace computers was unsettled at the time of the search, what was
settled was the fact that property rights did not determine whether a warrant
was required. In 1984, Hunter v. Southam Inc., [1984] 2 S.C.R. 145,
divorced the concept of privacy from the law of trespass and said that s. 8
protects “people, not places” (p. 159). In 1990, the Court found a reasonable
expectation of privacy in a hotel room in R. v. Wong, [1990] 3 S.C.R. 36, and in 2003, found a
reasonable expectation of privacy in a rented locker in R. v. Buhay,
[2003] 1 S.C.R. 631. The search in this case, in June 2006, occurred many
years after this established jurisprudence, undeniably a sufficient amount of
time for an officer who had years of experience in
cyber-crime to have known that property interests did not determine the
reasonable expectation of privacy.
[115]
Justice Fish finds that the trial judge made a
“clear and determinative” error in finding that D.C. Burtt wrongly relied on
the ownership of the laptop in deciding not to get a warrant. With respect, in
my view the trial judge’s conclusion is fully supported by the evidence.
[116]
D.C. Burtt accepted that he had reasonable
grounds for a warrant. Then, on multiple occasions, he stated explicitly that
he chose not to obtain a warrant because the computer, and therefore its data,
were the property of the School Board:
[Crown Counsel Mr. Roy]. And
did you consider obtaining a search warrant?
A. Yes, I did, sir.
Q. And whose decision was it
to make with respect to whether or not you would be obtaining a search
warrant? Did you consult with anyone else?
A. No, that was my decision,
sir.
Q. And why did you decide not
to obtain a search warrant?
A. It was my belief that
the laptop in question was the property of the Rainbow District School Board,
that Mr. Slywchuk had said that it was a teacher or a staff computer, that the
sticker on the bottom of the laptop indicated it was property of Rainbow
District School Board, and at that point I was advised that it was their
property. . . .
. . .
Q. Now would your approach
have been different if you were seizing a computer from a residence?
A. In a residence there are
several users on computers. This is a personal computer as opposed to a
business computer with a property. Most of us don’t put a “Property of Tim
Burtt” on the back of my computer as opposed to a property of an employer.
So I would look in my household and there are three, four people who could use
my computer and I believe that each one of them would have a privacy interest
because my son may be chatting with someone or somebody in a household may be
chatting and they may claim that they have some kind of privacy. I would get a
search warrant even if, use an example, a wife catches her husband doing
something and says I don’t want this computer, I want you to do this because I
caught him doing something illegal, and it’s in my possession already at
headquarters, I would get a warrant for it in that time because I would be
respecting the privacy of all those people on that personal computer.
Q. Did you consider
whether or not Richard Cole had any expectation of privacy in that computer?
A. I did consider that. The
information that I was receiving was that it was the School Board’s computer
and that was their property. I had never received any information in
regards to Mr. Cole owning that computer or that he had any privileged
material. And I’ve dealt with cases where there have been privileged material
on a laptop or on a computer. And the only information I had received about
any private material that was on that computer came from Mr. Bourget [the
school principal] and that was in regards to some images of Mr. Cole’s —
personal images of his wife and that was the only information I had in regards
to any private information there.
. . .
[Defence Counsel Mr. Keaney].
Okay. And you decided not to get a search warrant before looking at that CD
called the temporary Internet folder. Why?
A. Because of the same
reasons as I explained with the laptop, that I believe that the data and the
images were all part of that laptop and that that laptop belonged to the
Rainbow District School Board.
. . .
A. . . . if I believe that
there’s a privacy interest I would get a warrant . . . for it, but based
on the information I collected up until the examination of the computer,
including the procedures, the data contained within and that would be, I guess,
a subject to review, the data contained and created within being the Board’s
property, what they call their property, I didn’t believe that that data
belonged to Mr. Cole. [Emphasis added.]
[117]
Apart from vague references to “privileged material”, the
distinction that D.C. Burtt drew between the search of a shared home computer
and that of a work computer was the fact that the laptop belonged to the School
Board. He acknowledged that if he were searching a home
computer used by several people, he would obtain a warrant “because [he] would
be respecting the privacy of all those people on that personal computer”. The
distinction for him appears to have been that “[m]ost of us don’t put a
‘Property of Tim Burtt’ on the back of [a] computer as opposed to a property of
an employer.” Indeed, immediately after this statement, D.C. Burtt reaffirmed
that he did not get a warrant in Mr. Cole’s case because of the School
Board’s ownership of the laptop. This echoes the repeated
statements he made throughout his testimony to justify his failure to get a
warrant or to conduct a further inquiry into the privacy interests at play.
[118]
Despite acknowledging that there could be
personal information on Mr. Cole’s computer, and despite being told by the
principal of the school that Mr. Cole kept personal photographs on it, there
is no evidence that D.C. Burtt took any steps to discover the extent of the private
information on Mr. Cole’s computer before effecting a warrantless search.
[119]
D.C. Burtt acknowledged that he knew about the
private use that Mr. Cole made of the laptop before he looked at the content of
the CDs. He knew that Mr. Cole had a password to his computer. He had also
received statements confirming that the photos were in a hidden folder, that
teachers regularly kept personal information on their
laptops and that Mr. Cole specifically had “personal private information on his
computer”, namely the photos of his wife. In fact, D.C. Burtt even
acknowledged that, in conducting a warrantless search of Mr. Cole’s workplace
computer, he knew there could be “personal stuff on there”, and would make
efforts to avoid it:
Business computer or any computers
may have some personal stuff on there. I can even
use an example from our own computers that I know that officers may check a
website and may send an e‑mail. So some people will have a personal
folder or a personal picture or something like that. I’ll respect that because
it’s not what I’m looking for. Essentially I’ve been given information in
regards to possible child pornography. Mr. Cole’s wife is not part of the
investigation and it’s — when the forensic images obtain . . . It’s hard to
explain but the whole computer, when the . . . The forensic program
takes all of the images, not just from one area. It takes it so that it can
recreate a proper image. So when all those images come in I’m not particularly
— I’m not looking for Mr. Cole’s family pictures. I’m not looking for Mr.
Cole’s financial records. I’m not looking for anything that may be in there.
What I’m looking for are images of child pornography or improper Internet — not
Internet searches but web browsing where there may be access of child
pornography and illegal activity related to child pornography or any other
offence. [Emphasis added.]
[120]
D.C. Burtt would not have been able to rely on
the School Board’s ownership of an office desk for a warrantless search of Mr.
Cole’s personal files in the desk’s drawer, in complete disregard for Mr.
Cole’s privacy interests (see Buhay). The same should be true of Mr.
Cole’s school-owned laptop.
[121]
There were also no exigent circumstances or
other legitimate reasons that forced the police to proceed without a warrant.
As the trial judge noted, “[h]ad the legal route to accessing the data in that
computer been followed, it is likely that it could have been obtained without
alerting Richard Cole about what was transpiring.” There was therefore no
urgent need on the part of the police to preserve the evidence.
[122]
In his testimony, D.C. Burtt accepted that once he received the CDs and the laptop, he was confident that
they would remain uncompromised, that their integrity would not be at issue,
and that there was ample time to get a warrant. In fact, though he looked at
the CDs immediately after seizing the materials on June 28, the laptop was not
sent for forensic analysis until August 18, nearly two months later. This too
weighs in favour of exclusion.
[123]
It is also uncontested that D.C. Burtt not only
had ample time to obtain a warrant, he had reasonable and probable grounds to
do so. The relevance of this factor was recently discussed in R. v. Côté,
[2011] 3 S.C.R. 215, where the Court said that the failure to obtain a warrant
can either be a mitigating or an aggravating factor under the first branch of
the Grant test, depending on whether the police had a “legitimate”
reason for it (R. v. Grant, [2009] 2 S.C.R. 353). In this case, it
seems to me that the “legitimacy” of the warrantless search hinges on the
finding that D.C. Burtt’s good faith was compromised by his disregard for the
established law. Since I see no reason justifying his decision not to get a
warrant, this factor too mandates in favour of exclusion.
[124]
The second aspect of the Grant test
considers the impact on the Charter -protected interests of the accused.
This factor “calls for an evaluation of the extent to
which the breach actually undermined the interests protected by the right
infringed” (Grant, at para. 76). The
interest in this case is privacy. Grant, R.
v. Harrison, [2009] 2 S.C.R. 494, and Côté address the key relevant concerns at play in
determining the impact of a breach of a privacy interest in this case: the
reasonable expectation of privacy and the extent of the intrusion.
[125]
The reasonable expectation of privacy is central
to assessing the impact of the breach on the accused’s Charter -protected
interests. Even if it can be said that there is a diminished expectation of
privacy in a workplace computer, this is not the end of the inquiry. The
record shows that teachers at the school kept a great deal of personal
information on their computers, a fact that was known both to the school and to
D.C. Burtt prior to the police search. Mr. Cole himself kept personal photos,
financial records, tax records, and information about a property he owned on
his computer. The search also included Mr. Cole’s Internet browsing history,
which would provide an extensive, unfiltered view of many aspects of his life.
As Justice Fish recognized, the information that was available on the search of
Mr. Cole’s computer was “meaningful, intimate, and organically connected to his
biographical core”.
[126]
The substantial amount of private information
which was seized by the police from Mr. Cole’s computer meant that it was a
highly intrusive search. In other words, regardless of whether there is a
diminished expectation of privacy in a workplace computer, the extent of
the seizure in a given case should be relevant under s. 24(2) . In Harrison,
the Court asked whether “the breach [was] merely transient or trivial in its
impact” and considered it a mitigating fact that, “[h]ad it not turned up
incriminating evidence, the detention would have been brief” (paras. 28 and
30). In Côté, the Court noted that the police had conducted a two-hour
warrantless search of the accused’s home (para. 85). And in Morelli,
the breadth of the search of the accused’s computer was significant to the
analysis (paras. 104-5).
[127]
The warrantless search and seizure in this case
included not only the impugned photos, but also the computer and a copy of the
data on the hard drive. In other words, it had no restrictions as to scope.
As a result, regardless of any diminished reasonable expectation of privacy in
a workplace computer, the extent of the search of Mr. Cole’s hard drive
and browsing history was significant, which weighs in favour of exclusion.
[128]
The fact that the police had reasonable and
probable grounds to obtain a search warrant and discover the evidence does
little to attenuate the intrusiveness of the search that actually occurred. As
this Court explained in Côté,
the absence of prior judicial
authorization still constitutes a significant infringement of privacy. Indeed,
it must not be forgotten that the purpose of the Charter ’s protection
against unreasonable searches is to prevent them before they occur, not to sort
them out from reasonable intrusions on an ex post facto analysis: R.
v. Feeney, [1997] 2 S.C.R. 13, at para. 45. Thus, prior authorization is
directly related to, and forms part of, an individual’s reasonable expectation
of privacy. [para. 84]
[129]
The third and final factor in Grant is
society’s interest in an adjudication on the merits, which “asks whether the truth-seeking function of the criminal trial
process would be better served by admission of the evidence, or by its
exclusion” (para. 79). Three considerations have been
emphasized by the Court in weighing this factor: the reliability of the
evidence, its importance to the prosecution’s case, and the seriousness of the
offence.
[130]
First, “[i]f a breach . . . undermines the
reliability of the evidence, this points in the direction of exclusion of the
evidence” (Grant, at para. 81). While I agree with Justice Fish
that the evidence in this case is reliable, a factor arguing in favour of
admission, its importance to the prosecution’s case is, it seems to me,
minimal, and it can hardly be said to reach the level described in Grant of
“effectively gut[ting] the prosecution” (para. 83).
[131]
There is little evidence in this case about the
particular relevance of the laptop and Internet browsing history, especially given
that the pornographic photographs themselves, as well as the screenshot showing
their location on Mr. Cole’s computer, were both admitted. The Crown suggests
that the information in the laptop, including the metadata accompanying the
photos (data stored on each file that records when it was created and altered)
and the Internet browsing history, help establish the context in which the
files were downloaded and whether the files were viewed, copied or
transmitted.
[132]
At best, the Crown’s need for Mr. Cole’s entire
hard drive and his browsing history in order to establish possession of child
pornography, is highly speculative. In Morelli, the Court held that in
order to be guilty of possession of child pornography, “one must knowingly
acquire the underlying data files and store them in a place under one’s
control”, such as by storing it on the hard drive (para. 66). That knowledge and control
can be inferred if the pornography is found in a folder where users typically
keep their personal files.
[133]
In Mr. Cole’s case, the pornographic photos were
stored in a folder under “My Documents” and the screenshot records their
location. This location supports an inference that they were deliberately
placed there by Mr. Cole. As a result, the Crown may well be able to establish
possession without the metadata and browsing history.
[134]
Finally, while the seriousness of the offence is
a relevant factor to consider, Grant observed that it “has the potential
to cut both ways”. Section 24(2) is focussed on the longer-term reputation of
the administration of justice. As a result, “while the public has a heightened
interest in seeing a determination on the merits where the offence charged is
serious, it also has a vital interest in having a justice system that is above
reproach, particularly where the penal stakes for the accused are high” (para.
84). This statement was reaffirmed in Harrison and Côté, cases
where the Court excluded evidence that was central to the prosecution of a
serious offence. It seems to me that the result of these decisions is to
seriously attenuate the impact of the seriousness of the offence in the s.
24(2) analysis.
[135]
This brings us to balancing these factors. The Charter -infringing
conduct in this case was serious in its disregard for
central and well-established Charter standards. Nor were there any
exigent circumstances or other legitimate reasons preventing the police from
getting a warrant. The impact of the breach on Mr. Cole’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. And while the evidence in this case is reliable,
its importance to the prosecution’s case is at best speculative. Balancing
these factors, and in light of the deference owed to trial judges in applying
s. 24(2) , it seems to me that the trial judge was reasonable in excluding the
evidence.
[136]
I would dismiss the appeal.
Appeal
allowed, Abella J.
dissenting.
Solicitor
for the appellant: Attorney General of Ontario, Toronto.
Solicitors
for the respondent: Addario Law Group, Toronto; Ruby Shiller Chan,
Toronto.
Solicitor
for the intervener the Director of Public Prosecutions: Public
Prosecution Service of Canada, Edmonton.
Solicitor
for the intervener the Attorney General of Quebec: Attorney General
of Quebec, Québec.
Solicitors
for the intervener the Criminal Lawyers’ Association (Ontario): Dawe
& Dineen, Toronto.
Solicitors
for the intervener the Canadian Civil Liberties Association: Lax O’Sullivan
Scott Lisus, Toronto.
Solicitors for the
intervener the Canadian Association of Counsel to Employers: Hicks
Morley Hamilton Stewart Storie, Toronto.