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Warrantless computer searches to be heard by Supreme Court
By Sam Pazzaro
Tuesday, May 15, 2010

The Supreme Court of Canada Building in Ottawa. (John Major/QMI Agency)

TORONTO - Canada’s highest court will examine the issue of warrantless searches of computers by police Tuesday.

The case stems from a Sudbury high school teacher who had child pornography on his school-issued laptop.

And on the same day in a London courtroom, Michael Rafferty — who had the pornographic blueprint of his heinous crimes on his computer ruled inadmissible for his trial — will be sentenced for the brutal sex slaying of little Tori Stafford.

In that case, Superior Court Justice Thomas Heeney ruled the contents of Rafferty’s computer inadmissable due to a faulty search warrant. Investigators found child porn, movies on Paul Bernardo and Karla Homolka and Google searches on “underage rape” on the computer.

The Supreme Court of Canada, meanwhile, will deal with the issue of search warrants in the case involving former Sudbury computer teacher Richard Cole, who accessed a male student’s e-mail account, found nude photos of a female pupil and copied them onto his school-issued laptop in 2006.

The discovery of those explicit photos — which were copied onto a disc — led the principal to order Cole to surrender the laptop.

A subsequent search of the computer disclosed Cole’s browsing history and files with large numbers of pornographic images. This history was also saved on to a disc.

Cole was acquitted after the trial judge ruled that the warrantless searches infringed on his Charter security rights and excluded all the computer evidence. The prosecution won its appeal as a Superior Court ruled that Cole shouldn’t have a reasonable expectation of privacy on his employer’s laptop hard drive.

Last year, the Ontario Court of Appeal determined while some of the images were admissible, others obtained during the warrantless search by police could not be used in the case. A new trial was ordered.

The Crown is appealing to the Supreme Court in a bid to get all the pornographic images included in the next trial.

“Where a teacher is alleged to have possessed child pornography, including sexually explicit images of an underage student at his school, on a laptop that belonged to the school, the public interest in getting at the truth is self-evident,” argued Crown attorneys Amy Alyea and Frank Au in their factums.

Defence lawyers opposed the inclusion of the evidence, saying permitting Charter violations “would breed cynicism” about how seriously judges regard the Charter.

“Justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices,” stated the factum from defence lawyers Frank Addario, Gerald Chan and Kremblewski Nader Hasan.