Tuesday, October 22, 2019, I attended the Wikipedia Editathon at Vancouver Island University (VIU) Library (Nanaimo, BC, Canada) co-sponsored by the VIU Library, VIU Centre for Excellence and Innovation in Learning (CIEL), and VIU Faculty of Education (department in which I work). I’d attended several of these editathons at VIU prior to this event and had been contributing edits to Wikipedia for sometime–some of te edits were “substantive’– but for this editathon I wanted to do something completely new and more ambitious:
This is the first instalment on the process. I thought I would share the “academic prose” I posted in the very early drafts of the page content I wrote. I read through the primary case documents on CANLII to summarize the case in what I thought was an intelligible fashion. Given my initial exposure to being edited, I think it will be substantially different when it/if it “makes it” back to full fledged live Wikipedia status as “R v Cole (2011)”. This, and conversations I’ve had about my initial experiences being edited as a first-time Wikipedia page author are the inspiration for this series of blog posts.
In this first instalment, I thought I would demonstrate the content and style from my early drafts of the R v Cole (2001) page that I posted during/shortly after the VIU Wikipedia editathon (October 22, 2019). The page “R v Cole (2011)” was temporarily live and visible “as was” (a few twitter followers commented on the content while it was live) but a higher level editor placed the article in “draft” status.
I thought I would post my original–admittedly very “academically” style content here and follow it’s progression from this state to being “wikified” by Wikipedia editors. I also intend to discuss my experience of this process. I hope you’ll follow my journey.
R v Cole, 2011 Ontario Court of Appeal
R v Cole was a 2011 Canadian court case in the Ontario Court of Appeal addressing the issue of digital workplace privacy. A key privacy issue was whether Richard Cole, a high school teacher, “had a reasonable expectation of privacy in the contents of a work computer on which he was entitled to store personal information”. In R v Cole (2011 ON CA), the appeals court upheld an earlier pre-trial decision that the manner by which police obtained evidence from Cole’s computer violated of Cole’s Charter rights; therefore, the evidence was considered “impugned evidence” and was excluded.
Actions leading to seizure of Richard Cole’s computer (2006)
Richard Cole had been employed in the Rainbow School District (a public school district located in Sudbury, Ontario) since the 1990s where he taught computer science to grade 9 students. Though a teacher, Cole also had administrative rights to the school network. The court documentation implies that there may have been some tensions between the information technology staff and Cole regarding the level of administrative access held by Cole as a teacher. In 2006, an information technologist at the school used new network monitoring software and, while using it, identified an unusual amount of activity associated with Cole’s account on the network. The technician, Ryan Taggart, identified a hidden folder on Cole’s computer that contained “images of a naked girl …but that he [Taggart] was not sure she was a student at the school”. The images were later identified as images of a grade 10 girl in the high school where Cole worked.
After consulting with members of the information technology team, Taggart contacted the principal, Bruce Bourget, about the content discovered on Cole’s computer. Bourget “refused to look at the images, asking Ryan Taggart to cover them up before he looked at the face of the girl in question for the purpose of identifying her”. After reviewing the images, the principal identified the subject as a grade 10 female student at the high school. The principal ordered Taggart to copy the images onto a CD. Bourget then asked Taggart to keep the situation confidential to protect Cole’s privacy while Bourget consulted with his superiors at the Rainbow District School Board office for advice in how to proceed. Bourget was directed by the school board administration to seize Cole’s computer at the next available opportunity.
Seizure of Cole’s computer & involvement of police (2006)
The following morning, Cole surrendered his laptop to Principal Bourget but refused to provide his [Cole’s] password even when it was explicitly requested by Bourget. The computer was next brought to another district technician, George Gauthier, who made a copy of Cole’s temporary internet files. Gauthier then removed the grade 10 student’s images to prevent any additional individuals viewing the photos. At this point, the Rainbow School District had possession of the computer, the CD burned by Taggart, and copies of Cole’s temporary Internet files.
Subsequently, an unidentified individual (likely associated with the Rainbow District School Board) contacted Sergeant Rob Thirkill about the incident. Thirkill alerted the Cyber Crime Unit of the Greater Sudbury Police Service. Detective Constable Burtt traveled to the Rainbow School District and seized the computer used by Cole, the CDs burned by Taggart, and the temporary files copied by Gauthier. Burtt then sent the hardware and files to the Sault Ste. Marie Police Service for further analysis. Court documents state that the Sault Ste. Marie Police “also obtained the laptop of the student from whose computer the female student’s pictures had originally been downloaded”. These images of the grade 10 student were later revealed in the court documents to have originated from the grade 10 girl’s “boyfriend’s computer”.
As there had been no warrant obtained for the files or hardware, Detective Constable Burtt was asked during proceedings whether he “had considered obtaining a warrant at any stage.” Burtt stated that “because the laptop belonged to the Rainbow District School Board, there was no need for him to get a warrant.” He noted that he was “aware that there was personal material on Richard Cole’s computer” when it was sent to the Sault Ste. Marie Police Service for further analysis.
Case in Ontario Court of Justice & evidence exclusion (2008)
“On a pre-trial application, the trial judge excluded the evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, finding that the police had infringed the appellant’s s. 8 rights because he had a reasonable expectation of privacy in the laptop’s contents.” The court found that the Rainbow School District did not violate Cole’s Section 8 Charter Rights and found that “the overriding obligation on the part of the principal [is] to ensure the health and safety of his students”. The court also noted that when informed of the situation, Bourget addressed Cole’s privacy rights by asking Taggart to maintain confidentiality while Bourget contacted his superiors at the Board for further direction. As the court stated, “Once the information was disclosed to the principal, he had no choice but to act”.
While there was some muddiness around whether the principal and school board were acting as agents of the Greater Sudbury Police Service in seizing the hardware and files, the court found Cole’s Section 8 Charter rights “came into focus” once the police arrived in the school district and seized the computer, CD, and temporary files.
The court found Cole had been “given the exclusive use of” the computer supplied by the school district where his exclusivity was secured with a password. The court stated that the computer “was physically seized from him [Cole] without his consent” and that the computer was “locked” by Cole’s password that he refused to give Principal Bourget. The computer’s “contents could not be accessed, except when actually in use or when one was in possession of the password”. The court also determined “that there existed some protocol at least to advise staff of any imminent intention to recover actual possession of their computers. Barring this, staff were allowed to use their computer for limited personal purposes and, indeed, to take them home during the summer recess, whether for personal use or for the purpose of preparing their fall courses. the actual policy seems to have been to accept that staff would load private material onto their computers.” 
Though court was unable to clearly determine if the school’s information technologists or administrators (school and school board) had been acting as agents of the police, once Detective Constable Burtt of the Greater Sudbury Police Service became involved, “the seizure of the material …without a warrant was egregious and constituted a breach of Richard Cole’s section 8 Charter rights”.
The available information in court documents implies that there were no conclusions made as to Cole’s inclinations towards child pornography or pedophilia. In fact, the court implied a lack of evidence in this respect:
There was no suggestion that this material had been obtained from a pedophile or from someone engaging in the trade of such material, that there was a commercial or exploitative aspect to its production, that it was extorted from those originally making or possessing it or that the very images contained such depiction of human sexuality as would shock the conscience of the average citizen. Again, while I do not think that the presence of sexual images depicting the accused’s wife on the same computer hard drive itself renders the impugned material non-pornographic, it situates to some degree the accused’s preoccupation and orientation. This does not seem to be in the nature or attraction to child pornography.
The Ontario Court of Justice went on to conclude in 2008 that though the school had reason to be concerned for the welfare and safety of students, it had an equal right to protect individual’s privacy: “In approaching the situation, the reasonably informed man or woman, aware of the privacy rights of each citizen and appreciative of such rights would surely insist on due process, particularly when nothing was to be gained by denying it.”
Ultimately, the 2008 decision by Justice Guay “excluded the impugned evidence, consisting of the respondent’s laptop computer, the contents of the hard drive, the school’s compact disks and the school board’s temporary internet file disk under s. 24(2) of the Charter“. As the Crown’s case rested solely on the computer & copied files, to further pursue the case, they had to appeal.
Crown appeal in Ontario Superior Court (2009)
In R v Cole (2009,ON SC), the Crown appealed Justice Guay’s exclusion of the Crown’s only evidence: Cole’s computer, the CDs, and temporary files. The Crown did not dispute the judge’s finding that the school had not violated Cole’s Charter rights, although the Crown did indirectly question this finding by calling out previous statements indicating “the subject school board and its school are statutory authorities subject to the Charter“.
The Crown set forth 3 arguments for its appeal related to Guay’s errors in determining
- “the respondent had a reasonable expectation of privacy”;
- the search of Cole’s computer and files was warrantless and not conducted in a reasonable manner;
- “to exclude the evidence under s. 24(2)” and in judging the seriousness of Cole’s offense.
Superior Justice Kane found “The Charter analysis in this case cannot be determined without considering the respondent’s employment context, his employer’s ownership of and issuance to him of a laptop computer, and the rules regarding his use of that computer, including the permissibility of personal use and the user’s right of privacy.” The judge put forward an decision defining a “subjective expectation of privacy” vs an “objective expectation of privacy”. Justice Kane accepted that Cole “had a subjective expectation of privacy in the data stored on the laptop and the school’s server, given his possession of the computer, his assignment of a password to that computer and the shading of the file folder containing the female student’s images”; however, given that the laptop was the property of the Rainbow School District, was subject to a verbally explained “User Agreement” for employees (discussed yearly though not signed as in the case of students), and was subject to Rainbow School District Policy Statement P.9.06, the judge found Cole did not have an objective expectation of privacy. Rainbow District School Board Policy 9.06 outlined “acceptable use of information technologies”, specifically
- Information technology systems and all data and messages generated on or handled by board equipment are considered to be the property of Rainbow District School Board, and are not the property of users of the information technology;
- Rainbow District School Board information technology generally must be used only for business activities. Incidental personal use is permissible so long as; i) it does not consume more than a trivial amount of resources, ii) it does not interfere with staff productivity, iii) it does not pre-empt any business activity.
- Inappropriate content –Users may not post, access or attempt to access material that is inappropriate for a school or administrative office environment, such as (but not limited to) offensive, sexually explicit, obscene, profane, inflammatory, or degrading materials. (See also Policy and Operational Procedures P.9.05 – Pornographic Material.)
- Privacy- E-mail is considered private and the e-mail system is considered property of Rainbow District School Board. However, the administrative team can legally open private e-mail if that action seems necessary for the on going health of the system or if inappropriate use is suspected. In cases where access to a user’s account for system/trouble-shooting purposes is required, attempts to request the user’s permission will be made first. When a user’s account is accessed, the user shall be notified.
Ontario Superior Court Justice, Paul Kane found that Guay “failed to assess the respondent’s reasonable expectation of privacy independently of the police’s involvement” and granted the Crown appeal finding that “Mr. Cole’s subjective expectation of privacy was not objectively reasonable”. 
Appeal in Ontario Court of Appeal (2011)
On appeal in R v Cole (2011,ON CA), Justice Karakatsanis reviewed the following 4 questions:
- Did the appellant have a reasonable expectation of privacy in the contents of the laptop?
- If so, did (a) the technician or (b) the principal or (c) the school board breach s. 8 of the Charter?
- Did the police breach s. 8 of the Charter by searching the laptop and the compact discs without a warrant?
- If so, did the trial judge err in excluding the evidence?
Karakatsanis concluded that Cole did, in fact, have “a reasonable expectation of privacy from state intrusion in the personal use of his work computer and in the contents of his personal files on its hard drive. However, his expectation of privacy was modified. He had no expectation of privacy with respect to access to his hard drive by his employer’s technician for the limited purpose of maintaining the technical integrity of the school’s information network and the laptop.” The judge concluded that while the Charter applied to the school district and its employees, “the search by the technician, the principal and the school board officials did not breach s. 8 of the Charter. The technician was acting within the scope of his functions when he came across the student photographs and thus did not violate the appellant’s modified privacy interests. The principal and school board officials acted reasonably under the authority of the Education Act, R.S.O. 1990, c. E.2 to protect students and a safe learning environment.”
The judge stated the school “expressly permitted [Cole and other teachers] to store personal information on their work computers. Accordingly, the school board did not have the authority to consent to the search of a work laptop in which they had permitted personal use by the teacher.” Karakatsanis found “there was no evidence that anyone monitored or policed the teachers’ use of their laptops, nor did the AUA [Acceptable Use Agreement] or the Policy and Procedures Manual address this issue…to the extent that the terms of the AUA applied to teachers, the evidence shows that they were modified by the policy and by convention and usage of the teachers’ laptops.”
Ultimately, the appeals judge agreed with Guay’s earlier decision in R v Cole (2008, ON CJ): once the police seized the laptop and the copied files from the Rainbow District School Board, they violated Cole’s “right to be secure against unreasonable search and seizure” and the evidence should be excluded. In particular, Karakatsanis pointed out “there was no urgency and no exigent circumstances and a warrant could easily have been obtained” by the police.
In concluding this case, Justice Karakatsanis noted the lack of Canadian case law or statue dealing with the issue of digital privacy in the workplace circa 2011: “There is little authority in Canada on the issue of whether an individual has a reasonable expectation of privacy in [a] work computer.”