Cherry Picking at the Supreme Court of Canada: R. v. Cole

Today’s decision by the Supreme Court of Canada in R. v. Cole 2012 SCC 53 (S.C.C.) addresses the constitutional scope of the reasonable expectation of privacy based on unreasonable search and seizure under s. 8 of the Charter. By a 6-1 majority, the Court concluded that a warrantless search and seizure of laptop computer and disc containing Internet files breached the accused’s rights under s. 8 of Charter, but ought not to have been 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 work-issued laptop computer, which included permission for personal or incidental use. During technical maintenance, a technician found a hidden folder containing nude and partially nude photographs of an underage female student on the accused’s laptop, who  notified the principal, with the  photographs copied to a CD.  The principal seized the laptop and the temporary Internet files were burned onto a second CD.  The laptop and both discs were handed over to the police, who reviewed their contents— without a warrant—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 no s. 8 breach; thereafter the Court of Appeal for Ontario set aside that decision and excluded the improperly obtained computer evidence, except  the CD containing the photos of the student, which 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.

Rather than analyzing the Court’s reasons, I am going to propose a cherry picking exercise.

The following are two excerpts from the reasons for decision:

Excerpt #1:

[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. [Original emphasis redacted]

Excerpt #2:

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.  [Original emphasis redacted]

Pop Quiz:

1. Which excerpt does the majority decision rely upon? 

1. Excerpt #1

2. Excerpt #2

3. Both

4. Neither

2. Which excerpt does the dissent rely upon?

1. Excerpt #1

2. Excerpt #2

3. Both

4. Neither

3. Which excerpt supports, and which excerpt contradicts, the trial judge’s view that the police officer “confuse[d] ownership of hardware with privacy in the contents of software”?

1. Excerpt #1

2. Excerpt #2

3. Both

4. Neither

4. Which excerpt offers evidence of the police officer’s casual attitude toward — or, still worse, deliberate flouting of the individual’s Charter rights?

1. Excerpt #1

2. Excerpt #2

3. Both

4. Neither

5. Is a police officer’s subjective state of mind relevant or irrelevant to a breach of an accused’s constitutional right?

1. Relevant- only the police officer can tell what he was thinking at the time.

2. Irrelevant – a deliberate decision to not obtain a search warrant, with ample opportunity to do so, is all that matters.

3. Who cares? As long as the child pornographer gets convicted.

2 Responses to “Cherry Picking at the Supreme Court of Canada: R. v. Cole”

  1. LandlordRescue.ca Says:

    I’m thinking Section 5. (3) but I’m a pragmatist.

  2. Antonin I. Pribetic Says:

    Pragmatism is a slope that appears safe, but is often slippery.

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