R. v. Cole (R.), (2011) 277 O.A.C. 50 (CA)

JudgeWinkler, C.J.O., Sharpe and Karakatsanis, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateNovember 22, 2010
JurisdictionOntario
Citations(2011), 277 O.A.C. 50 (CA);2011 ONCA 218

R. v. Cole (R.) (2011), 277 O.A.C. 50 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. MR.017

Her Majesty the Queen (respondent) v. Richard Cole (applicant/appellant)

(C50526; 2011 ONCA 218)

Indexed As: R. v. Cole (R.)

Ontario Court of Appeal

Winkler, C.J.O., Sharpe and Karakatsanis, JJ.A.

March 22, 2011.

Summary:

The accused teacher was charged with possession of child pornography (Criminal Code, s. 163.1) and unauthorized use of a computer (s. 342.1). The accused argued that he had a privacy interest respecting the school laptop that was seized and in all information retrieved from it. He sought an order excluding evidence obtained in breach of his rights under s. 8 Charter rights. The trial judge allowed the application. He excluded the impugned evidence, consisting of the accused's laptop computer, the contents of the hard drive, the school's compact disks and the school board's temporary internet file disk. The Crown had no further evidence and the charges were therefore dismissed. The Crown appealed.

The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned. A69, allowed the appeal and ordered a new trial. The accused sought leave to appeal.

The Ontario Court of Appeal granted leave to appeal and allowed the appeal. The court set aside the decision of the summary conviction appeal judge, substituted an order excluding the evidence of the disc containing the temporary internet files and the laptop computer and its mirror image, and remitted the matter for a new trial.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The accused teacher was provided with a laptop by his school for use in teaching communication technology and in supervising a laptop program for students - He accessed a student's email account, found nude photos of another student and copied them onto the hard drive of his school-issued laptop - A computer technician employed by the school discovered the photos - He went to the principal - The principal obtained the laptop from the teacher - The school board and police got involved - The accused was charged with, inter alia, possession of child pornography - The accused argued that his s. 8 Charter rights were violated as he had a privacy interest respecting the laptop and in all information retrieved from it - The Ontario Court of Appeal, held that, assuming that the Charter applied to the school board, the accused had a reasonable expectation of privacy from state intrusion in the personal use of the laptop and in the contents of his personal files on its hard drive - However, his expectation of privacy was modified - He had no expectation of privacy respecting access to his hard drive by the school board's technician for the limited purpose of maintaining the technical integrity of the school's information network and the laptop - The technician was acting within the scope of his functions when he found the photos and thus did not violate the accused's modified privacy interests under s. 8 - See paragraphs 6, 7, 29 to 59.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The accused teacher was provided with a laptop by his school for use in teaching communication technology and in supervising a laptop program for students - He accessed a student's email account, found nude photos of another student and copied them onto the hard drive of his school-issued laptop - A computer technician employed by the school discovered the photos during the course of his legitimate access to the laptop - He went to the principal - The school board and police got involved - The accused was charged with, inter alia, possession of child pornography - The accused argued that his s. 8 Charter rights were violated as he had a privacy interest respecting the laptop and in all information retrieved from it - The Ontario Court of Appeal held that, assuming that the Charter applied to the school board, the principal's actions in viewing the face in the photos, directing the technician to copy the photos onto a disc and requiring the accused to immediately hand over the laptop, constituted a search and seizure - However, the principal did not violate s. 8 - The principal had the overriding obligation to ensure the health and safety of the students - Once the information was disclosed to him, he had no choice but to take appropriate action - He acted reasonably under the authority of s. 265 of the Education Act to protect students and ensure a safe learning environment - See paragraphs 7 and 60 to 63.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The accused teacher was provided with a laptop by his school for use in teaching communication technology and in supervising a laptop program for students - He accessed a student's email account, found nude photos of another student and copied them onto the hard drive of his school-issued laptop - A computer technician employed by the school discovered the photos during the course of his legitimate access to the laptop - He went to the principal - The principal obtained the laptop - The school board searched the laptop, obtained data relating to the accused's internet browsing, and saved the "temporary internet files" onto a disc - The laptop was later turned over to police - The accused was charged with, inter alia, possession of child pornography - The accused argued that his s. 8 Charter rights were violated as he had a privacy interest respecting the laptop and in all information retrieved from it - The Ontario Court of Appeal held that, assuming that the Charter applied to the school board, the school board did not violate s. 8 - It acted reasonably under the authority of s. 265 of the Education Act to protect students and ensure a safe learning environment - It was investigating a serious allegation of teacher misconduct and a threat to the school environment - The search of the laptop and preservation of the evidence for an internal discipline procedure was an obvious means to do so - See paragraphs 64 to 66.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The accused teacher was provided with a laptop by his school for use in teaching communication technology and in supervising a laptop program for students - He accessed a student's email account, found nude photos of another student and copied them onto the hard drive of his school-issued laptop - A computer technician employed by the school discovered the photos during the course of his legitimate access to the laptop - He went to the principal - The principal obtained the laptop - The school board searched the laptop, obtained data relating to the accused's internet browsing, and saved the "temporary internet files" onto a disc - The laptop and discs were turned over to police - The police obtained a mirror image of the laptop's hard drive, allowing them to view the entire contents of the laptop - No warrant was obtained as the police believed that the laptop was owned by the school board and it had consented to the police search - The accused was charged with, inter alia, possession of child pornography - The accused argued that his s. 8 Charter rights were violated as he had a privacy interest respecting the laptop and in all information retrieved from it - The Ontario Court of Appeal held that the police search of the laptop and the police seizure of the disc containing temporary internet files violated s. 8 - Teachers were expressly permitted to store personal information on their work computers - Therefore, the school board did not have the authority to consent to the search of a work laptop in which they had permitted personal use by the teacher - The accused also had a privacy interest in his personal internet browsing history and what it revealed about his personal predilections and choices - The fact that the discs and laptop had been lawfully seized by the principal and the school board and delivered to the police did not affect the accused's continuing privacy expectations - There were no exigent circumstances - The warrantless search by the police was unreasonable - See paragraphs 8 to 10 and 67 to 79.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The accused teacher was provided with a laptop by his school for use in teaching communication technology and in supervising a laptop program for students - He accessed a student's email account, found nude photos of another student and copied them onto the hard drive of his school-issued laptop - A computer technician employed by the school discovered the photos during the course of his legitimate access to the laptop - He went to the principal - The principal obtained the laptop - The school board searched the laptop, obtained data relating to the accused's internet browsing, and saved the "temporary internet files" onto a disc - The laptop and discs were turned over to police - The police obtained a mirror image of the laptop's hard drive, allowing them to view the entire contents of the laptop - No warrant was obtained as the police believed that the laptop was owned by the school board and it had consented to the police search - The accused was charged with, inter alia, possession of child pornography - The accused argued that his s. 8 Charter rights were violated as he had a privacy interest respecting the laptop and in all information retrieved from it - The Ontario Court of Appeal held that the disc containing the photos delivered by the principal to the police did not require further search by police - The accused had no continuing personal privacy interest in the images of the student obtained through the school system - As a result, there was no police search or seizure of this evidence within the meaning of s. 8 - See paragraphs 8 to 10 and 80.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 1655.2

Property - Search and seizure - Warrantless search and seizure - Computers - [See Civil Rights - Topic 1508 and all Civil Rights - Topic 1646 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused teacher was provided with a laptop by his school for use in teaching communication technology and in supervising a laptop program for students - Teachers were permitted to store personal information on their work computers - The accused accessed a student's email account, found nude photos of another student and copied them onto the hard drive of his school-issued laptop - A computer technician employed by the school discovered the photos during the course of his legitimate access to the laptop - He went to the principal - The principal obtained the laptop - The school board searched the laptop, obtained data relating to the accused's internet browsing, and saved the "temporary internet files" onto a disc - The laptop and discs were turned over to police - The police obtained a mirror image of the laptop's hard drive, allowing them to view the entire contents of the laptop - No warrant was obtained - The accused was charged with, inter alia, possession of child pornography - The Ontario Court of Appeal held that the police search of the laptop and the police seizure of the disc containing temporary internet files violated s. 8 of the Charter and that this evidence should be excluded under s. 24(2) - The search revealed all the personal use of the computer without any prior judicial authorization - This intrusion into the accused's informational privacy was significant - Searching a computer that was used for personal purposes was potentially among the most invasive of searches - The temporary internet files could disclose personal preferences and interests, as well as freedoms of thought and association, which the accused would have a high expectation would remain private - It did not appear that the exclusion of this evidence would "gut the prosecution" given the availability of other admissible evidence that established the photos and where they were found - See paragraphs 84 to 92.

Cases Noticed:

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72, refd to. [para. 22].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 26].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 32].

R. v. Patrick (R.S.), [2009] 1 S.C.R. 579; 387 N.R. 44; 454 A.R. 1; 455 W.A.C. 1; 2009 SCC 17, refd to. [para. 32].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 33].

R. v. Mercer and Kenny (1992), 52 O.A.C. 70 (C.A.), leave to appeal refused (1992), 143 N.R. 396; 59 O.A.C. 64 (S.C.C.), refd to. [para. 43].

R. v. Little, 2009 CanLII 41212 (Ont. Sup. Ct.), refd to. [para. 44].

France (Republic) v. Tfaily, [2010] O.A.C. Uned. 74; 98 O.R.(3d) 161 (C.A.), refd to. [para. 44].

R. v. M.R.M., [1998] 3 S.C.R. 393; 233 N.R. 1; 171 N.S.R.(2d) 125; 519 A.P.R. 125, refd to. [para. 50].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 63].

Stoner v. California (1964), 84 S.Ct. 889 (U.S.S.C.), refd to. [para. 70].

United States of America v. Ziegler (2007), 474 F.3d 1184 (9th Cir.), writ of certiorari denied (2008), 552 U.S. 1105, refd to. [para. 71].

R. v. Colarusso, [1994] 1 S.C.R. 20; 162 N.R. 321; 69 O.A.C. 81, refd to. [para. 74].

R. v. Jarvis (W.J.), [2002] 3 S.C.R. 757; 295 N.R. 201; 317 A.R. 1; 284 W.A.C. 1; 2002 SCC 73, refd to. [para. 74].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13, refd to. [para. 75].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 2002 SCC 10, refd to. [para. 76].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 78].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 82].

Counsel:

Frank Addario and Andrew Furgiuele, for the appellant;

Amy Alyea, for the respondent.

This appeal was heard on November 22, 2010, by Winkler, C.J.O., Sharpe and Karakatsanis, JJ.A., of the Ontario Court of Appeal. Karakatsanis, J.A., filed the following written reasons for judgment of the court on March 22, 2011.

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34 practice notes
  • R. v. Cole, [2012] 3 SCR 34
    • Canada
    • Supreme Court (Canada)
    • October 19, 2012
    ...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 , ......
  • Table of cases
    • Canada
    • Irwin Books Criminal Procedure. Fourth Edition
    • June 23, 2020
    ...143, 192, 194 R v Cole, 2010 NSCA 59 .............................................................................. 546–47 R v Cole, 2011 ONCA 218, var’d 2012 SCC 53, [2012] 3 SR 34 ................................................... 27, 81, 94, 96, 99, 145, 195–96 R v Coles (2003), 221 Nfl......
  • Table of Cases
    • Canada
    • Irwin Books The Law Society of Upper Canada Special Lectures 2012: Employment Law and the New Workplace in the Social Media Age
    • June 18, 2013
    ...R v Campbell, 2012 ONCJ 86 ......................................................................................42 R v Cole, 2011 ONCA 218, rev’d 2012 SCC 53 .....................................................16, 17, 19–21, 34, 36–39, 69–70, 111, 273 Table of Cases   385 R v Collins, [19......
  • 2011 year in review: constitutional developments in Canadian criminal law.
    • Canada
    • University of Toronto Faculty of Law Review Vol. 70 No. 2, March 2012
    • March 22, 2012
    ...190, 275 CCC (3d) Considered elements of 45. criminal negligence causing death with respect to principal offenders and parties R v Cole, 2011 ONCA 218, 105 OR (3d) Employees have diminished 253. reasonable expectation of privacy in work laptops; police require warrant to search even if empl......
  • Request a trial to view additional results
14 cases
  • R. v. Cole, [2012] 3 SCR 34
    • Canada
    • Supreme Court (Canada)
    • October 19, 2012
    ...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 , ......
  • R. v. Cole (R.), (2012) 297 O.A.C. 1 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • May 15, 2012
    ..., allowed the appeal and ordered a new trial. The accused sought leave to appeal. The Ontario Court of Appeal, in a decision reported at 277 O.A.C. 50, granted leave to appeal and allowed the appeal. The court set aside the decision of the summary conviction appeal judge, substituted an ord......
  • Young v. Ewatski,
    • Canada
    • Court of Appeal (Manitoba)
    • June 17, 2011
    ...[para. 11]. R. v. Demchuk (R.M.) (2003), 180 Man.R.(2d) 130; 310 W.A.C. 130; 2003 MBCA 152, refd to. [para. 17]. R. v. Cole (R.) (2011), 277 O.A.C. 50; 105 O.R.(3d) 253; 2011 ONCA 218, refd to. [para. 17]. R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, r......
  • R. v. Cole (R.), (2012) 436 N.R. 102 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • May 15, 2012
    ..., allowed the appeal and ordered a new trial. The accused sought leave to appeal. The Ontario Court of Appeal, in a decision reported at 277 O.A.C. 50, granted leave to appeal and allowed the appeal. The court set aside the decision of the summary conviction appeal judge, substituted an ord......
  • Request a trial to view additional results
13 firm's commentaries
  • Reasonable – But Diminished – Expectation Of Privacy In Contents Of Employer-Owned Laptop
    • Canada
    • Mondaq Canada
    • April 17, 2013
    ...his reasonable expectation of privacy. This was overturned on appeal to the Superior Court. The Ontario Court of Appeal (R v Cole, 2011 ONCA 218) had agreed that Cole had a reasonable expectation of privacy in the computer's contents because he had exclusive possession of the laptop, and pe......
  • The Ontario Court Of Appeal's Decision in R. v. Cole: Implications On Workplace Privacy
    • Canada
    • Mondaq Canada
    • May 26, 2011
    ...and computer-use policy that is consistently enforced to prevent an expectation of privacy from arising. Footnotes [2011] O.J. No. 1213, 2011 ONCA 218. Wallace Immen, "Computer ruling seen as landmark workplace decision," The Globe and Mail, March 25, 2011 online: http://www.theglobeandmail......
  • Employee Privacy On Work Computers To Be Decided By Supreme Court
    • Canada
    • Mondaq Canada
    • June 26, 2012
    ...Supreme Court of Canada has granted leave to appeal the Ontario Court of Appeal's decision in R. v. Cole, 2011 ONCA 218. Mr. Cole, a teacher, was charged with possession of child pornography and unauthorized use of a computer after a computer technician accessed his laptop to perform a viru......
  • Do Employees Have A Right To Privacy In Viewing And Storing Porn On Company Computers?
    • Canada
    • Mondaq Canada
    • March 31, 2011
    ...use company computers for personal use; and regularly take company laptops home on evenings and weekends. Footnotes R. v. Cole, 2011 ONCA 218. The Court of Appeal held that the search of the laptop by the police was unlawful because the police did not first obtain a search warrant. The lapt......
  • Request a trial to view additional results
7 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Criminal Procedure. Fourth Edition
    • June 23, 2020
    ...143, 192, 194 R v Cole, 2010 NSCA 59 .............................................................................. 546–47 R v Cole, 2011 ONCA 218, var’d 2012 SCC 53, [2012] 3 SR 34 ................................................... 27, 81, 94, 96, 99, 145, 195–96 R v Coles (2003), 221 Nfl......
  • Table of Cases
    • Canada
    • Irwin Books The Law Society of Upper Canada Special Lectures 2012: Employment Law and the New Workplace in the Social Media Age
    • June 18, 2013
    ...R v Campbell, 2012 ONCJ 86 ......................................................................................42 R v Cole, 2011 ONCA 218, rev’d 2012 SCC 53 .....................................................16, 17, 19–21, 34, 36–39, 69–70, 111, 273 Table of Cases   385 R v Collins, [19......
  • 2011 year in review: constitutional developments in Canadian criminal law.
    • Canada
    • University of Toronto Faculty of Law Review Vol. 70 No. 2, March 2012
    • March 22, 2012
    ...190, 275 CCC (3d) Considered elements of 45. criminal negligence causing death with respect to principal offenders and parties R v Cole, 2011 ONCA 218, 105 OR (3d) Employees have diminished 253. reasonable expectation of privacy in work laptops; police require warrant to search even if empl......
  • If You Tweet It, They (the Police) Will Come!
    • Canada
    • Irwin Books The Law Society of Upper Canada Special Lectures 2012: Employment Law and the New Workplace in the Social Media Age
    • June 18, 2013
    ...see R v Fearon , 2010 ONCJ 645 at para 51 [ Fearon ]. 9 See R v Little , 2009 CanLII 42594 (Ont SCJ) [ Little No 2 ]; and R v Cole , 2011 ONCA 218 [ Cole ], Charter violation aff’d but rev’d on other grounds, 2012 SCC 53. 10 Little No 2 , Ibid. If You Tweet It, They (the Police) Will Come! ......
  • Request a trial to view additional results

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