Friday, March 25, 2011

This Week at the Ontario Court of Appeal: 11-03-25

Each week, Wise Law Office reviews recent decisions from the Ontario Court of Appeal.

R. v. Cole. Mr. Cole, a teacher, was charged with possession of child pornography when a computer technician at his school performing a virus scan remotely accessed his school-issued laptop's hard drive and found naked pictures of an underage student. The school then gave police the laptop. At no time was a search warrant obtained.

At his summary conviction trial, the trial judge found that Mr. Cole had a reasonable expectation of privacy in the contents of his laptop's hard drive, since the school board's policy was that teachers had exclusive use of their laptops and that they were permitted to load private material onto them. However, the summary conviction appeal judge disagreed, noting that Mr. Cole's terms of employment, wherein he agreed to his employer's right to monitor his email use and data, waived his right of privacy. The summary conviction appeal judge also felt that, since Mr. Cole was computer-proficient and in fact on the school's information technology committee in a supervisory role, and was thus aware of the school's capability to access his private data, his expectation of privacy was not objectively or subjectively reasonable.

The Court of Appeal set aside the decision of the summary conviction appeal judge, but did not agree entirely with the trial judge's opinion. In most respects, they agreed that Mr. Cole had a reasonable expectation of privacy in the use of his laptop: teachers used their laptops to store sensitive personal information, and the only privacy provision regarding the laptops was that technicians would attempt to get (but not necessarily require) permission of the using teacher before accessing the laptop for troubleshooting purposes. The Court stated that the fact that a technician could access the hard drive did not negate his reasonable expecation of privacy, and the police's failure to obtain a warrant was not negated by their reception of permission from the school board. Therefore, the laptop itself and the copies made of the files upon it were not admissible.

However, the Court also found that although the school's delivery of the laptop, where there was no warrant, did indeed violate Mr. Cole's privacy, the initial access of his hard drive by the technician did not violate his s.8 privacy rights.

The technician had valid reasons for examining the contents of the hidden file folder on Mr. Cole's computer which contained the pictures, and the Court of Appeal agreed that the technician was doing so for the purpose of maintaining the school's network. Therefore the technician's search did not violate s.8, and the evidence gained through that search (namely, the pictures themselves) was admissible at Mr. Cole's trial. Read-the-whole-case rating: 3.

R. v. Rivera. An appeal on a charge stemming from an impaired-driving inspection. Ms. Rivera was pulled over as part of a R.I.D.E. program check, and upon exiting the car was visibly unsteady. The constable attempted to get Ms. Rivera to perform a breath sample test, but after eighteen failed attempts on her part, he arrested her for failing to provide a breath sample. When she protested, he gave her another three chances to provide a sample, which she also failed.

At trial, Ms. Rivera claimed that she was suffering a panic attack and could not operate the breath sampling device. She called experts who both diagnosed her as suffering from a panic disorder. The trial judge, however, was not impressed, particularly given that Ms. Rivera lied to the constable, claiming she worked for the Ontario Provincial Police, which the judge took as a sign of rational thought. He also felt that the constable's testimony - wherein Ms. Rivera was not visibly panicking - was more credible than Ms. Rivera's. He convicted Ms. Rivera summarily. Ms. Rivera appealed. The summary conviction appeal judge agreed with the trial judge, and Ms. Rivera appealed again.

The Court of Appeal allowed the appeal after considering two separate grounds. They first stated that the trial judge had relied improperly on Ms. Rivera's statements made before she had counsel. The Court noted that although the initial stop did not constitute a detention, Ms. Rivera's extended series of tests certainly could. Thus, according to Canadian caselaw, her right to counsel depended on whether the questioning and its use by the crown remained within the narrow reasonable limit on right to counsel in roadside impaired driving investigations: namely, proving the elements of the offense. The Crown submitted that her comments constituted a denial, but the Court of Appeal disagreed, stating that her statements, and particularly the fact that she asked for another chance when arrested, did not constitute the actus reus of refusing to comply with a breath test.

The Court also stated that the appeal judge should have considered Ms. Rivera's rights under s.7 of the Charter of Rights and Freedoms. At trial, the judge felt that her failure to inform the constable about her panic attack harmed her credibility. Ms. Rivera argued that her right to silence made that issue one that should not have properly been considered. The Court cited multiple precedents where defendants who had had their silence considered as a failure to assert their innocence or excuse and therefore impinge upon their credibility were found to be improper, and agreed with Ms. Rivera that her right to silence had been compromised. Read-the-whole-case rating: 3.
- Christopher Bird, Toronto
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