On Friday, the Supreme Court of Canada released its decision in R. v. Cole, which is a case involving the search of a teacher’s laptop that uncovered naked and partially naked photos of a student.
While the case was predominantly focused on whether or not the evidence the police gathered was done so lawfully and whether or not it could be used in the criminal matter, the case also tangentially addressed the school board’s right to search the teacher’s computer.
The Ontario Court of Appeal had concluded that the school board’s search of the teacher’s laptop for maintenance purposes was authorized by law and reasonable, and its subsequent seizure of the laptop following the discovery of the images of a naked and semi-naked student in order to keep the laptop and to make a copy of the images for student safety and employment reasons was also lawful and reasonable.
The school board had in place a policy and procedures manual which made it clear that all data and messages generated on school board equipment was owned by the school board. The school principal also reviewed with the staff the school board’s acceptable use policy for technology and indicated that it applied to staff, despite the fact that the policy did not specifically identify its application to staff. The Supreme Court of Canada stated however, that, “written polices are not determinative of a person’s reasonable expectation of privacy. Whatever the policies state, one must consider the totality of the circumstances in order to determine whether privacy is a reasonable expectation in the particular situation.” In this case, the Supreme Court held that the teacher did have an expectation of privacy regarding the personal information stored on his school board issued laptop.
The accused did not challenge the school board’s right to inspect the laptop, so the Supreme Court was clear to say that this issue would be left for another court to decide on another occasion. Nevertheless, the Court did comment on the school board’s search and seizure, despite the teacher’s right to privacy, stating: “In any event, I agree with the Court of Appeal. The principal had a statutory duty to maintain a safe school environment (Education Act, R.S.O. 1990, c. E.2, s.265), and, by necessary implication, a reasonable power to seize and search a school-board-issued laptop if the principal believed on reasonable grounds that the hard drive contained compromising photographs of a student. This implied power is not unlike the one found by the majority of this Court in M. (M.R.), at para. 51. I likewise agree with the Court of Appeal that other school board officials had the same implied powers of search and seizure as the principal (paras. 64-66).”
Thus, while an employer’s right of search and seizure for employment purposes might remain outstanding, the Supreme Court of Canada’s statements provide significant support for school boards to search and seize technology where student safety is at risk.