In R. v. Cole, 2012 SCC 53, the majority of the Supreme
Court of Canada ruled that it was unconstitutional for the police
to search the workplace computer of a high school teacher without a
warrant. The Supreme Court held that the school board - Cole's
employer - was not so constrained, as it had a statutory duty to
maintain a safe school environment, and a reasonable power to seize
and search the school-issued laptop based on a reasonable belief
that the computer contained compromising photographs of a
Cole, a high school teacher, stored nude photographs of a
student on a laptop computer provided to him by the school board.
These illicit photographs were discovered by a technician in the
course of regular network maintenance. The technician notified the
principal, who seized the laptop, and copied the photographs and
the temporary internet files onto separate discs. The principal
then gave both the laptop and the discs to the police, who
proceeded to search this material without a warrant.
The issue before the Supreme Court was therefore whether
Cole's rights under s. 8 of the Charter were breached
when the police searched his laptop and the temporary internet
files without a warrant. The legality of the employer's initial
search was not at issue, and the Supreme Court expressly stated
that it would "leave for another day the finer points of an
employer's right to monitor computers issued to employees
So what does the Cole decision mean
for employers? The Supreme Court's finding that the school
board's Policies and Procedures Manual created a diminished
expectation of privacy demonstrates the importance of computer use
policies in the workplace. These policies play a crucial role in
establishing "the rules of the game" in terms of an
employee's use of, and privacy expectations in, workplace
computer technology. Employers can use these policies to
communicate their expectations about personal use, and to assert
ownership over, as well as their ability to access, any data stored
on the technology. These policies can diminish an individual's
expectation of privacy in a workplace computer even where some
personal use of the workplace computer is permitted. In addition,
though Cole did not discuss workplace
discipline, workplace computer use policies can also specify that
contravention of the policy will be grounds for discipline up to
and including termination. Employers should take steps to ensure
that computer use policies are applied and enforced in a consistent
manner in order to preserve their ability to rely on these policies
for discipline purposes.
For additional guidance on what information should be covered in
these policies, please see Field Law's previous article
http://www.fieldlaw.com/articles/WW45_Winter2012.pdf. Field Law
can assist employers with the preparation of policies relating to
the use of computer technology in the workplace.
1. At para. 60
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