On October 19, 2012, the Supreme Court of Canada issued its ruling in R. v. Cole. The Court held that a teacher's Charter rights were breached when the police searched the school-issued laptop and computer files. Relying on this evidence that was given to the police by the employer, criminal charges were laid relating to possession of child pornography. At the heart of the appeal was whether the police had committed an unlawful seach by violating a reasonable expectation of privacy.
Facts of the Case
A Sudbury high school provided one of its teachers, Mr. Cole, with a laptop to be used for teaching purposes. While reviewing students' computer files, Cole discovered nude photos of an under-age student and copied them onto the hard drive of his work laptop.
The school's technician discovered the nude photos during a routine data scan. He reported it to the principal. Further investigation revealed that Cole's computer browser history included a large number of pornographic sites. Two disks containing the photographs and the browser history, as well as the computer, were provided to the police by the principal. The police viewed all of it without a search warrant.
At the criminal trial, defence counsel argued that Mr. Cole's Charter rights, protecting against unreasonable search and seizure, had been breached. The focus of the appeal was on the police force's search of the computer files without a search warrant.
Reasonable Expectation of Privacy
The SCC held that Mr. Cole had a reasonable expectation of privacy in the personal information stored on his work-issued laptop. This expectation was violated when that information was examined by the police. As such, his s. 8 Charter rights protecting against unreasonable search and seizure had been breached.
Whether a reasonable expectation of privacy exists will depend on the "totality of the circumstances", said the Court. This involves an assessment as to whether Mr. Cole's subjective expectation of privacy was objectively reasonable.
The Court emphasized that computers and other internet-connected devices often contain the sort of personal information in the browsing history which reveals our specific interests, likes and propensities. This sort of information attracts constitutional protection because it is reasonable for a person to expect that information which goes to their "biographical core" will be kept private. This is so even when the device is owned and monitored by an employer.
Policies Not Determinative
Cole's subjective expectation was balanced against other factors, including the language contained in the school's technology use policies. One policy expressly stated that use of school-issued laptops as well as all data and messages generated and handled via those laptops was the property of the school board. It also set out that users of such technology were subject to access by school administrators. Another provided that all material saved on the hard drives or servers may be monitored, and that users should not assume that such data will be kept private.
Notwithstanding the strength of the policy language and the school board's ownership of the technology, the Court determined that the personal nature of the information outweighed the language contained in the policies. Mr. Cole thus held an objectively reasonable expectation of privacy.
This reasonable expectation of privacy was, however, a diminished one in these circumstances.
The principal and other school board officials had the power to seize and search the laptop based particularly on their statutory duty to maintain a safe school environment. The school board was also legally entitled to inform the police of its discovery.
However, the police did not have the same power. The school board could not consent to a search or waive Mr. Cole's Charter protection on his behalf.
Accordingly, the warrantless search of the computer files amounted to an "unreasonable search and seizure" by police. However, because the Court was satisfied that admitting the evidence would not bring the administration of justice into disrepute, the evidence need not be excluded from the trial.
As the evidence had been wrongly excluded, a new trial was ordered.
Take Away for Employers
R v. Cole arose in the context of a claim that an individual's Charter rights had been breached when the police reviewed and made copies of the contents of that individual's work-issued laptop. While Mr. Cole did not argue that the initial inspection by the school technician as part of the routine maintenance was a breach of his Charter rights, the SCC declined to make a determination as to whether and when an employer can monitor computers that are issued to employees. In fact, the SCC expressly opted to "leave for another day the finer points" of this issue. As such, this area of the law as it applies to employers remains unsettled.
How this decision will be applied to future cases remains to be seen. But this case emphasizes the importance of maintaining clear policies in relation to the acceptable use of technology.
Employers are encouraged to:
- ensure your policies clearly state that the technology (and data stored) remains the property of the employer,
- ensure your policies clearly state the acceptable parameters for use of that technology; and
- provide notice that the employee's activities may be monitored and they should not expect them to be private.
Such policies may not be determinative regarding police powers, but may diminish an otherwise reasonable expectation of privacy. They will also enhance the employer's ability to enforce its standards of acceptable computer use.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.