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The Supreme Court of Canada has granted leave to appeal the
Ontario Court of Appeal's decision in R. v. Cole, 2011
ONCA 218. Mr. Cole, a teacher, was charged with possession of child
pornography and unauthorized use of a computer after a computer
technician accessed his laptop to perform a virus scan and verify
the system's integrity. In doing so, the technician found a
hidden folder on the hard drive containing nude sexually explicit
photos of a grade 10 student. The technician reported this to the
principal who, in turn, reported it to the school board. The school
board that employed Mr. Cole turned over the laptop and two discs
of the images to the police who searched them without a warrant.
Mr. Cole challenged the charges against him on the basis that the
police had infringed his Charter right against unreasonable search
and seizure because he had a reasonable expectation of privacy in
the contents of the laptop.
Other critical background facts include :
Mr. Cole was a member of the IT committee and aware that
computer technicians could access laptops connected to the system
to maintain the integrity of the school's information
network;
the school board owned the laptop, but permitted teachers to
use them for personal use and to take them home during weekends and
vacations; and
the policy and procedures manual applicable to Mr. Cole imposed
some limits on personal use, but did not provide for any searches
and only addressed privacy in connection with email.
The Court of Appeal had determined that the computer technician
and school board's search of the laptop did not breach any
Charter rights. The technician acted reasonably within the scope of
his function and Mr. Cole had no reasonable expectation of privacy
with respect to his actions. The principal and school board acted
appropriately given their obligations under the Education
Act. The police search, however, was found to be unreasonable
resulting in the exclusion of the evidence gained from the laptop
and two discs.
Of concern for employers is the finding that Mr. Cole had a
reasonable expectation of privacy in the information stored on the
hard drive of his laptop, subject to the limited right of access by
the school board's computer technicians to maintain the
integrity of the system. The decision was a good reminder that
explicit policies putting employees on notice they should have no
expectation of privacy in material kept on work systems are
essential.
The Supreme Court, as is its practice, did not issue reasons in
granting leave to appeal. The Canadian Association of Counsel to
Employers (CACE) has intervened seeking that the Supreme Court
articulate a broad and clear right of employer access to work
computers as part of their integrated information system intended
to support work.
About Fraser Milner Casgrain LLP (FMC)
FMC is one of Canada's leading business and litigation law
firms with more than 500 lawyers in six full-service offices
located in the country's key business centres. We focus on
providing outstanding service and value to our clients, and we
strive to excel as a workplace of choice for our people. Regardless
of where you choose to do business in Canada, our strong team of
professionals possess knowledge and expertise on regional, national
and cross-border matters. FMC's well-earned reputation for
consistently delivering the highest quality legal services and
counsel to our clients is complemented by an ongoing commitment to
diversity and inclusion to broaden our insight and perspective on
our clients' needs. Visit:
www.fmc-law.com
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