Porn case draws line on privacy

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Late last month Canadians' privacy rights collided head-on with child-pornography laws at the Supreme Court of Canada. Privacy rights got the worst of the collision.

The case involved the Supreme Court's review of three -- a trial court and two appellate courts -- attempts to strike a balance between an individual's right to workplace privacy and prosecution of child pornography.

The accused in the case, Richard Cole, was an Ontario high-school teacher who was permitted to use his employer-issued laptop computer for incidental personal purposes. A technician working on Mr. Cole's laptop found a hidden folder of nude and partly nude photos of a female student who was a minor.

The technician notified the school's principal and copied the photos to a disc. The principal seized the laptop and school-board technicians copied the temporary Internet files that contained the photos to a second disc. The laptop and both discs were delivered to the police who, without a warrant, reviewed their contents and created a mirror image of the laptop's hard drive. The police then charged Mr. Cole with the crime of possession of child pornography.

Three successive lower courts ping-ponged back and forth whether all or some of the photos saved to disc, the temporary Internet files saved to disc, the mirror image hard drive and the laptop itself should be excluded as inadmissible evidence, due to violation of the teacher's right not to be subject to warrantless, and therefore unreasonable, search and seizure under Sec. 8 of the Charter of Rights and Freedoms.

The Supreme Court ruled that though there was a breach of Mr. Cole's Charter rights, the best available evidence of his alleged crime, including the police's warrantless access to, and copying of, the laptop's hard drive, shouldn't be excluded. It said the warrantless search wasn't an egregious violation of his Charter rights, and admitting all computer-related evidence at trial would not bring the administration of justice into disrepute. As Mr. Justice Morris Fish put it: "The exclusion of the material would have a marked negative impact on the truth-seeking function of the criminal trial process." The court ordered a new trial for Mr. Cole.

The decision also indicated that though employees doing personal business on a company computer have a reasonable expectation of privacy, that expectation is subject to limits. And one such legitimate limit occurs where an employer becomes aware of an employee's personal stored data that, on the face of it, is illegal, and alerts the police.

Because of the case's singular facts, the court's ruling on workplace-privacy rights doesn't readily translate to all employees.

Charter rights only apply against government intrusions into our lives; they don't apply to business. Much of the case turned on the fact that Mr. Cole was a public school teacher, not a private-sector employee. Charter jurisprudence has long settled that school boards are "government actors," and therefore Charter rights apply to their acts. Mr. Cole therefore had a Charter argument available not only against the police search of his laptop without a warrant, but also as against the school board's copying the photos and turning them over to police.

Police search and seizure without a warrant is always subject to a Charter challenge where there's a reasonable expectation of privacy. Police should, generally, obtain judicial authorization before rooting through someone's laptop, regardless of who owns it. And because they're government actors, similar Charter-rights considerations apply to the actions of school authorities. A private-sector employer, however, faces no such constraints, particularly where company policy permits inspection and removal of the employee's assigned computer.

Mr. Cole has at long last exhausted his Charter-based legal defences. Canadians employed in the private sector wouldn't even have been able to raise some of those defences.

Republished from the Winnipeg Free Press print edition November 12, 2012 A10