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Material on work computer private, court rules

Lawyer Frank Addario in his office.

Tibor Kolley/The Globe and Mail/Tibor Kolley/The Globe and Mail

Ontario's top court has found a right to privacy in material contained on a work computer.

A judgment on Tuesday from the Ontario Court of Appeal broke new ground on an issue that is exploding into the court system - the extent to which Internet information is private and beyond the reach of the law.

The case involved a Northern Ontario high school teacher charged with possessing child pornography. The judges said that police breached his Charter rights by viewing his computer files without a warrant.

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"The police technique was intrusive in copying the entire contents of the hard drive," the court said. "The contents of the hard drive of a laptop may contain extremely personal information such as medical and financial reports, personal journals, e-mails and appointments.

At the same time, the court concluded that school officials who stumbled upon the pornographic images had a right to monitor whether the school computer system was being used appropriately.

Frank Addario, a lawyer for defendant Richard Cole, said that the ruling has repercussions for employees who use their electronic devices for personal purposes, "which is pretty well everyone.

"There was a belief that ownership meant control of privacy, but that's an old school way of looking at privacy," Mr. Addario said. "Most Blackberry users carry a subset of their existence around with them regardless of who paid for the hardware."

In a pretrial ruling, the trial judge in the case tossed out the evidence as a violation of Mr. Cole's privacy rights. The Crown appealed to Superior Court, which reversed the ruling and sent it back for trial. The defence appealed that ruling to the Ontario Court of Appeal.

Toronto lawyer Scott Hutchison, a privacy expert, said that the court has given a sound answer to a vital question. "This case comes down firmly on the side of privacy and holds that employers cannot give police investigators access to a workplace computer," he said.

"This case makes it clear that the employer may own the computer, but that doesn't give them the power to waive the employee's privacy rights," Mr. Hutchison added. "It recognizes the realities of how people use modern workplace technology. People don't artificially 'switch off' their privacy interests just because the device in question is owned by someone else."

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Mr. Cole's responsibilities included patrolling students' e-mails and files. The Crown alleged that he discovered a large cache of explicit nude photographs of an underage female student and copied them into his own computer hard drive.

A school board technician later found the images, copied them onto a disc and seized Mr. Cole's laptop for a full search. The material was delivered to police.

Writing on behalf of Chief Justice Warren Winkler and Mr. Justice Robert Sharpe, Madam Justice Andromache Karakatsanis said the board employee did not breach the Charter protection against unreasonable search and seizure because he was mandated to do so.

However, the police search was an entirely different matter.

"Access to that information on the hard drive potentially exposed intimate details of the appellant's personal choices and could have exposed intimate details of a personal nature," Judge Karakatsanis said.

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Justice reporter

Born in Montreal, Aug. 3, 1954. BA (Journalism) Ryerson, 1979. Previously covered environment beat, Queen's Park. Toronto courts bureau from 1981-85. Justice beat from 1985 - present. More

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