The accused was a high school teacher who was allowed to use a school-owned laptop computer for personal use. A technician tasked with maintaining the computer on behalf of the school discovered nude photographs of an underage female student on the hard drive. He turned the computer over to the school principal who subsequently turned it over to police. The issue was whether the accused had a reasonable expectation of privacy in regard to the contents of the laptop, whether his right to be free from unreasonable search and seizure had been infringed, and whether the evidence should be excluded under Section 24(2) of the Charter.
The trial judge had opted to exclude the evidence in question, noting that the accused was allowed to use the computer for personal use and the police inspection of the hard drive (without a warrant) was a violation of his reasonable expectation of privacy. This conclusion was reversed by a summary conviction appeal court, and partially reversed again by the Court of Appeal, which ordered a new trial.
In considering this issue, the Supreme Court of Canada agreed with the trial judge that the accused’s reasonable expectation of privacy (and therefore his right to be free from unreasonable search and seizure) had been infringed.
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 … 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.
In considering whether the evidence should be excluded, however, the majority (by a vote of 6-to-1) found that admission of the illegally obtained evidence would not bring the administration of justice into disrepute, and therefore that the accused did not qualify for a remedy under Section 24(2) of the Charter:
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.
The Cole decision serves as one more example of the higher bar for excluding evidence in a criminal trial subsequent to the Supreme Court’s 2009 decision in Grant.
Decided by the Supreme Court of Canada on October 19, 2012.
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