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In its decision released on October 19, 2012, the Supreme Court of Canada has held that while an employer's ownership of a laptop, its workplace policies and practices, and technology in place can diminish an employee's reasonable expectation of privacy, they do not eliminate it: R v Cole, 2012 SCC 53

REASONABLE – BUT DIMINISHED – EXPECTATION OF PRIVACY ABOUT CONTENTS OF EMPLOYER OWNED LAPTOP

Justice Fish, writing for the majority of the Supreme Court of Canada, has held that while an employer's ownership of a laptop, its workplace policies and practices, and technology in place can diminish an employee's reasonable expectation of privacy, they do not eliminate it: R v Cole, 2012 SCC 53. There is no definitive list of factors to determine the extent of an employee's reasonable expectation that the contents of a work-owned computer will be private, but the more the information on the computer relates to 'the biographical core of information' about the employee, the more reasonable that expectation. An employer will need to have a serious reason to search an employee's computer. The school board did in Cole, in light of its statutory mandate to maintain safe school environment, but this did not justify a warrantless search by the police. The police, who acted independently of the board, clearly breached Cole's Charter rights. The majority did not think, however, that the evidence obtained from the police search ought to be excluded. The police acted in good faith and in something of a legal vacuum on the whole issue of privacy expectations in work computers, and Cole's expectation of privacy was in any event attenuated by the realities of his workplace. There were also good reasons to conclude that the evidence obtained was critical to the prosecution. On balance, admitting the evidence obtained from Cole's laptop would not bring the administration of justice into disrepute. A new trial was directed on that basis.

Cole was a high-school teacher who was charged with possession of child pornography which he stored on a laptop issued by the school where he taught. A member of the school's IT department had noticed unusual internet usage patterns on Cole's part and was directed by the principal to search the laptop. Cole appeared to have accessed sexually explicit photos of a naked girl, later identified as a grade 10 pupil at the school, in another student's e-mail account, using his domain-level access to the school network. The principal passed this evidence (including a history of Cole's internet browsing) to the police, who conducted a warrantless search and charged Cole. The trial judge excluded the evidence that had been obtained from the laptop on the grounds that it breached Cole's s. 8 Charter rights and violated his reasonable expectation of privacy. This was overturned on appeal to the Superior Court.

The Ontario Court of Appeal (R v Cole, 2011 ONCA 218) had agreed that Cole had a reasonable expectation of privacy in the computer's contents because he had exclusive possession of the laptop, and permission to use it for personal purposes – and because the school board did not monitor usage or have a policy in place with respect to monitoring. The school's techie was, however, operating within the scope of his functions in maintaining the integrity of the network and the particular laptop, and the school was justified in passing the evidence on to the police in order to protect students. Cole's expectation of privacy with respect to the laptop itself and his browsing history continued when that evidence was transmitted to the police, whose subsequent search was found to be unreasonable.

In the Supreme Court decision, Justice Abella, in dissent, agreed that there had been a Charter breach but also agreed with the Ontario Court of Appeal that the evidence that was obtained should be excluded.

TO DO:

  1. Ensure that you have an information technology policy that stipulates that the hardware and all information thereupon belong to the employer and can be accessed and verified at all times.
  2. Ensure that the policy is known and enforced.
  3. Before doing a thorough search of an employee's computer, ensure that there are serious reasons (supported by evidence) to do so.
  4. Police authorities need a warrant to access such information, even if the employer is entitled to it.
  5. Verify with counsel before searching an employee's computer, regardless of the circumstances.

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