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| Patrick J Ducharme |
Continued from School Searches (Part 3)
Current conditions require that teachers and school administrators be provided with the flexibility needed to deal with discipline problems in schools and to be able to act quickly and effectively. One of the ways in which school authorities may be required to react reasonably is by conducting searches of students and seizing prohibited items. Where the criminal law is involved, evidence found by a teacher or principal should not be excluded because the search would have been unreasonable if conducted by the police.
In R. v. Cole4 the Court of Appeal for Ontario found that the Sudbury police violated a schoolteacher’s rights when they examined his work computer for child pornography without a warrant. Richard Cole had a right to expect personal files on his computer’s hard drive would remain private. Cole, a computer science teacher for the Rainbow District School Board, was arrested after police found nude photos of a Grade ten student on a laptop issued by the school board. He was charged with possession of child pornography and fraudulently obtaining data from a male student’s computer, where nude photos of his girlfriend were stored.
Cole had a supervisory role over his school’s computer network and was responsible for checking out students’ e-mails and files on the school system. When a 16-year-old female sent nude photos of herself to a male student at the school, Cole accessed the male student’s e-mail account. The nude photos were copied onto a drive on the laptop issued to Cole by the school.
A technician, who noticed a lot of activity between the computers used by Cole and the male student, accessed the teacher’s laptop to check for a virus and found the sexually explicit photos of the girl. The technician took a screen photo and notified the principal, who ordered the images copied onto a disc. Under school board policy, teachers were allowed to take their laptops home and on vacation and many teachers stored personal information on the computers, including banking records and photos. The evidence uncovered by the technician was determined to be admissible, while other information personal to the teacher was inadmissible.
On further appeal to the Supreme Court of Canada5 the court found that the conduct of the police officer in this case was not an egregious breach of the Charter. While the police officer did attach great importance to the school board’s ownership of the laptop he apparently did not do so to the exclusion of other considerations. The court found that the officer sincerely and in good faith, albeit erroneously, considered the accused Charter interests. Further, the officer had reasonable and probable grounds to obtain a warrant. The court found if he had only complied with the applicable constitutional requirements the evidence would most certainly have been discovered. Lastly, the court found that the evidence was highly reliable. It was both probative and physical evidence. Consequently, the court found that the exclusion of the material would have a marked negative impact on the truth-seeking function of the criminal trial process. In the end, the court found that the admission of the evidence would not bring the administration of justice into disrepute and therefore the evidence should not be excluded.
Cory J. noted that teachers and principals must be able to act quickly to protect their students and to provide the orderly atmosphere required for learning. The Supreme Court of Canada noted that the school officials should not be held to the same stringent standard as the police when conducting searches of students. The principal had a statutory duty under section 265 of Ontario’s Education Act to ensure a safe school environment that implies an authority to conduct reasonable searches and seizures within the school environment without prior judicial authorization.
Consequently, the Cole case speaks to the appropriateness of quick and effective actions taken by the principal or other school authorities and places the responsibility on the police to get prior judicial authorization where there is a reasonable expectation of privacy. In Cole the court held that although the laptop and some of the personal information was in the hands of a third party, the employer, as a result of the technician’s access, the appellant did not abandon his privacy interests in his personal information on the computer. Furthermore, the police technique was intrusive in copying the entire contents of the hard drive. The contents of the hard drive of a laptop may contain extremely personal information such as medical and financial reports, personal journals, emails and appointments.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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