SELECTED CASE LAW
BRITISH COLUMBIA:
In 2013 BCCA 97, Mr. M, an elementary school principle, appealed his conviction for accessing child pornography.
An international investigation into child pornography found that child pornography had been downloaded from an IP address associated with Mr. M’s home. A search warrant for his home located deleted child pornography images on his computer. Without a warrant, the police then asked the School District for Mr. M’s work laptop. According to the school’s policies Mr. M was allowed to use the computer for personal use. A search revealed that child pornography had been accessed and deleted from this computer. Over 100 images were discovered.
At trial the evidence from the school computer was found to be admissible because there was no password protection and because Mr. M had deleted the content. The court found that Mr. M did not have any privacy interests in the evidence. Mr. M was found guilty of accessing child pornography.
After this decision, the Supreme Court released a decision on a different case that held that employees do have some privacy interests in their work computers.
Mr. M appealed the trial decision. On appeal, the court found that Mr. M did have a privacy interest in his work computer and his privacy rights were breached by the warrantless search. Where the trial judge interpreted the deleting of the files as abandonment, the appeal court stated: “deletion of the files is more consistent with an intention on the part of the user to destroy the information, or at least to conceal it from view by anyone else, including himself.” However, the evidence was still allowed to be used because the law was unsettled at the time, the breach was not “the most serious kind”, and society’s interest in the case weighed heavily in favour of admitting the evidence.
Also see: 2013 BCCA 98 (Appeal), 2010 BCSC 1544 (Application).
Criminal Offence(s): Child Pornography Offences