2012 SCC 53

In 2012 SCC 53, during routine maintenance on a high-school teacher’s employee laptop a technician found sexually explicit nude images of a grade 10 girl on a hidden folder on the hard drive of the computer. The teacher, Mr. C, had access to all of the student’s school laptops and had copied the pictures from a student’s laptop onto his workplace laptop. After discovering the images, the technician reported the images to the principal, who instructed the technician to copy the images onto a compact disc. The school then seized the laptop and had the technician’s copy the temporary internet files onto a second compact disc. The police were contacted, who seized the computer and CDs, and made a mirror image of the hard drive for forensic purposes. Mr. C was charged with possessing child pornography and the unauthorized use of a computer, however, Mr. C argued that the evidence should be excluded because the police had violated his section 8 Charter right to be protected from unreasonable search and seizure when the police seized and searched the CDs and laptop without a warrant.

At the trial level, 2008 ONCJ 278, the judge found that Mr. C’s section 8 Charter rights were in-fringed and excluded all of the computer material pursuant to section 24(2) of the Charter. The appeal court, [2009] 190 CRR (2d) 130 (ONSC), did not find a section 8 breach and reversed the decision of the trial judge. The Court of Appeal, 2011 ONCA 2018, set aside the decision of the appeal court and excluded the CD with the temporary internet files, the laptop and the mirror image of the hard drive. The Supreme Court held that Mr. C did have a reasonable expectation of privacy in his work computer because it contained information that was meaningful, intimate and touching on the user’s biographical core. The school board’s workplace policies and practices were found to diminish his expectation of privacy on the device, but not remove it completely. Mr. C’s employer had lawful authority to seize and search the laptop but could not provide third party consent for the police to search the laptop, even though the device and the data contained on it were property of the schoolboard. In failing to obtain a warrant prior to searching the laptop, the police infringed Mr. C’s rights against unreasonable search and seizure. The CD containing the photos were not disputed as admissible evidence, however, the Court held that admitting the other disputed evidence would not bring justice into disrepute and did not exclude the evidence from the second CD, laptop or mirror image of the hard drive.


Criminal Offence(s): Unauthorized Use of a Computer