In a judgment released last week, the Ontario Court of Appeal held that the appellant teacher had a reasonable expectation of privacy with respect to personal files stored on his work laptop. Specifically, R. v. Cole involved the discovery of nude images of a student on the appellant's laptop by the school's computer technician. The technician copied the images onto a disk for the school's principal and subsequently copied temporary internet files found in the laptop's browsing history onto another disk.

According to the Court,

"[a]lthough this was a work computer owned by the school board and issued for employment purposes with access to the school network, the school board gave the teachers possession of the laptops, explicit permission to use the laptops for personal use and permission to take the computers home on evenings, weekends and summer vacation. The teachers used their computers for personal use, they employed passwords to exclude others from their laptops, and they stored personal information on their hard drives. There was no clear and unambiguous policy to monitor, search or police the teachers’ use of their laptops.

The appellant's reasonable expectation of privacy, however, was limited to the extent that the school's technician could access the laptop to ensure the integrity of the school's network. In this case, the technician had accessed the appellant's laptop through the school server to investigate the possibility that the laptop had become infected by a computer virus. During the course of his work, the technician came across the offending images. Ultimately, therefore, the Court of Appeal concluded that the search by the technician and the subsequent search and seizure of the laptop conducted by the principal and school board did not violate the appellant's Charter rights. Meanwhile, the transfer to police of the disk containing the offending images, and the viewing of the images by police, did not constitute a search or seizure, since the photographs were taken from the school's network using the school's computer and were the subject of the privacy interest of the student. As such, the appellant had no privacy interest in the photographs themselves.

The appellant's privacy rights under section 8 of the Charter were found to have been violated, however, by the warrantless police search and seizure of the laptop itself. According to the court of Appeal, "[t]he technician’s discovery of the photographs during the course of his implied right of access did not vitiate the appellant’s reasonable expectation of privacy in the contents of his laptop in relation to the police." The Court of Appeal found a similar privacy interest in the appellant's personal internet browsing history.

Ultimately, therefore, the Court of Appeal found that the laptop and the mirror image of its hard drive taken by the police should be excluded from the evidence, as should the disk containing the temporary internet files.