Canada: The British Columbia Court Of Appeal Applies R. v. Cole Reasoning In R. v. McNeice

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions