The Queen v. Cole: Privacy Protection For Employer-Issued Equipment In Canada

Author:Mr Francois Lesieur (Articling Student)
Profession:Cozen O'Connor

The recent decision The Queen v. Cole by the Supreme Court of Canada touches upon interesting issues regarding information privacy in the digital age.

The facts are simple. An information technologist working at the same high school as Mr. Cole, a teacher, remotely accessed Cole's history of internet access and one of his drives and found a hidden file which contained nude photographs of a student. The photographs and internet file were copied onto a disc and given to the police, which determined that a search warrant was unnecessary. Cole was subsequently charged with possession of child pornography and fraudulently obtaining data from another computer hard drive. The trial judge excluded the computer material under Sections 8 and 24(2) of theCharter. In overturning the decision, the summary conviction appeal court found no breach of Section 8. This decision was set aside by the Ontario Court of Appeal, which concluded that the evidence of the disc containing the temporary internet files and the laptop computer and its mirror image was excluded. A 6-1 majority ruling by the Supreme Court concluded that the police infringed upon Cole's rights but upheld the Court of Appeals' finding that the evidence should not have been excluded from trial.

One should not be too quick to dismiss the dissident view expressed by Justice Rosalie Abella, who affirmed that the evidence at issue was obtained in violation of section 24 (2) of the Charter, which addresses treatment of improperly obtained evidence, and thus should have been excluded. What guarantees does a user have to guard against an information technologist maliciously using software to plant hidden folders on an employee's work issued lap-top computer? As user friendliness in technologies continues to increase, transparency continues to decrease. To give one trivial example, due to the monospaced font used by mechanical typewriters, typographical convention in the 20th century required double sentence spacing. Unknown to most users, proportional fonts in modern computers and word processing software now automatically assign the appropriate horizontal space after a ".".

Added to this invisibility is an unquestioned reliance on the evidentiary value created by the high level of fidelity of data and modern technologies. The most obvious example in this regard would be CCTV footage, which can easily be either tampered with, or display footage that is easily taken out of its broader context...

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