This article provides an update on our October 23, 2012
Employment and Labour Law Bulletin,
Privacy of Employee Records - Supreme Court of Canada issues
decision in R. v. Cole.
In R. v. Cole an employer (school board) seized an
employee's work laptop (owned by the school board) and provided
it to the police. The Supreme Court of Canada held that the police
did not have the power to search the laptop for the purposes of a
criminal investigation in the absence of a search warrant. Even so,
the Supreme Court of Canada admitted the laptop data into evidence
because its admission would not bring the administration of justice
into disrepute in all of the circumstances. For a full
understanding of R. v. Cole, please see the link above.
This article addresses the application of the reasoning in R.
v. Cole in a recent British Columbia Court of Appeal decision,
R. v. McNeice.
McNeice, a school principal, was charged with the offence of
accessing and possessing child pornography. A police investigation
in Germany led the Canadian police to an internet service provider
in Canada. This internet service provider gave the police
McNeice's name and address. The Canadian police obtained a
search warrant for McNeice's home computers, one of which was
found to contain images of child pornography. The police also
discovered that McNeice had a work laptop assigned to him by the
School District. Instead of obtaining a search warrant, the police
directly asked the School District for this work laptop. After
receiving legal advice, the Superintendent decided to comply with
the police request. The police, using special software, found child
pornography on the laptop's temporary internet files.
The Trial Judge ruled the work laptop evidence admissible on the
basis that McNeice had "abandoned any expectation of privacy
in the laptop". The Trial Judge relied on the lack of a
password and McNeice's deletion of browsing history and
temporary internet files to support this conclusion. The Court
concluded that McNeice did not have a subjective expectation of
privacy and that, even if he did, it would not have been an
objectively reasonable expectation of privacy.
McNeice appealed this ruling. Subsequent to the trial decision,
R. v. Cole was decided by the Supreme Court of Canada. As
a result, the British Columbia Court of Appeal had the opportunity
to examine the facts of this case in relation to the facts in
R. v. Cole.
The Court of Appeal held that the deletion of the subject files by
McNeice was more consistent with an intention to destroy the
information, or at least to conceal it from view by anyone else,
than with an intention to abandon his interests in the files. The
Court found the following similarities between Cole and
McNeice:
- in both cases the information on the laptop was biographical in nature;
- both the absence of a policy prohibiting personal use of a work laptop, as in McNeice, and the existence of a policy giving permission to use the work laptop for incidental personal use, as in Cole, created an expectation of privacy; and
- the deletion of files by McNeice had the same practical effect of prohibiting access by others as did Cole's use of a password.
These were some of the factors that led to the Court's finding that McNeice had a subjective expectation of privacy in the subject material that was objectively reasonable.
The British Columbia Court of Appeal then went on to consider
section 24(2) of the Canadian Charter of Rights and
Freedoms and whether the admission of the work laptop evidence
would bring the administration of justice into disrepute. The Court
held that the balance weighed in favour of admitting the work
laptop evidence. The police were held to have acted reasonably
because they believed they were acting within the law and because
they were concerned that, as a principal, McNeice was a potential
danger to the children under his care at school. The Court also
considered the fact that McNeice held a position of public trust.
The one factor that weighed against the admission of the evidence
was the significant impact of this breach on McNeice's right to
be secure against an unreasonable search. The work laptop contained
private information as to his personal interests, likes and
propensities, and it confirmed that it was McNeice, and no one
else, who was engaged in accessing the child pornography. However,
when considered in relation to the other factors, the Court held
that the effect on McNeice was not enough to exclude the work
laptop evidence.
It is interesting to note that the Court did not specifically
comment on the concept of a diminished expectation of privacy in
work laptops, as the Supreme Court of Canada did in R. v.
Cole. However, other than the absence of this specific
wording, the reasoning in R. v. McNeice was entirely
consistent with the reasoning in R. v. Cole.
It is unfortunate that the Court in R. v. McNeice did not
take the opportunity to comment on the "finer points of an
employer's right to monitor computers issued to
employees," an issue that was left unanswered by the Supreme
Court of Canada in R. v. Cole. Regardless, these decisions
confirm that employers should create clear policies outlining the
level of privacy that an employee should expect in a work laptop
and should consistently enforce those policies. Employers should
also be aware that neither their ownership of work laptops nor a
policy that laptops are intended for business use only completely
negates an employee's reasonable expectation of privacy in
personal information stored on a work laptop.
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.
