In a recent Supreme Court of Canada decision, R. v. Cole, it
was found that a high school teacher had a reasonable expectation
of privacy in the information contained on his work-issued
computer. That expectation was not absolute, however, as the school
had policies and practices in place that limited the teacher's
expectation of privacy.
Mr. Cole was a high school teacher with a work-issued laptop
computer. He was permitted by the employer, to use the computer for
"incidental personal purposes". Such purposes included
browsing the internet and storing personal information on the
computer's hard drive. Turns out that some of the information
he stored included nude and semi-nude photos of a female underage
The photos were found in a hidden folder by a technician
performing regular maintenance on the system. Upon being notified,
the principal seized the computer and had the photos and temporary
Internet files copied onto CDs. The police were called to
investigate. Mr. Cole was charged with possession of child
pornography and unauthorized use of a computer.
At trial, the judge excluded all of the computer material
pursuant to Section 8 (unreasonable search and seizure) and the
remedy Section 24(2) (exclusion of evidence due to infringement or
denial of rights) of the Canadian Charter of Rights and Freedoms
(the "Charter"); the charges were dismissed.
That decision was reversed at the summary conviction appeal
court, which did not find a Section 8 breach.
The Ontario Court of Appeal reversed the summary conviction
appeal decision, holding that there was a Section 8 breach; the
disc with the temporary Internet files, the laptop, and the copy of
the hard drive were all excluded.
The Supreme Court of Canada gave leave and a third appeal in
this case was heard.
What is perhaps of greatest interest about this decision (to
private-sector employers, at least) is the discussion about the
extent of an employee's reasonable expectation of privacy in a
work-issued computer. This is particularly relevant, given the
Ontario Court of Appeal's recent recognition of a tort of
intrusion on seclusion and the view of some arbitrators in the
union context that unionized employees enjoy a right to
While making it clear that it was going to "leave for
another day the finer points of an employer's right to monitor
computers issued to employees," the court nonetheless
commented on the relationship between the "operational
realities" of the workplace and an employee's right to
Importantly, there is no one determinative factor regarding
whether an employee has a reasonable expectation of privacy; rather
a consideration of the "totality of the circumstances" is
necessary. In considering the totality of the circumstances in Mr.
Cole's case, the court said that the nature of the information
"heavily favours recognition of a constitutionally protected
privacy interest" because Mr. Cole's personal use of his
work-issued laptop "generated information that is meaningful,
intimate and organically connected to his biographical
This privacy right was diminished, though not entirely, by the
fact that the school board owned the laptop and had put into place
workplace procedures, practices and policies (which addressed
ownership of both the computer as well as the information stored
upon the computer; whether employees were allowed to use the
computer for personal use (they were); and the fact that users of
school computers should not assume that files stored on the
computers will be private) regarding use of school computers. (We
note that non-government employers who are not subject to the
Charter may have a stronger basis to argue that their written
policies should be given more weight.)
What this means for you
It would appear from this decision that the existence of privacy
policies is but one factor to consider when determining whether an
employee had a reasonable expectation of privacy. However, it
should not be taken as detracting from the importance of the
employer having a carefully worded policy regarding an
employee's computer use.
Given the operational realities of many jobs (e.g. 24-hour
access to smartphones, work from home arrangements, etc.), the fact
is that many employees will utilize their workplace devices for
personal purposes. Having a policy which addresses such realities
may, when it comes to determining the boundaries of an
employee's expectation of privacy, go a long way.
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.
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