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Employees have Limited Privacy Rights on Employer – Issued Computers
October 19, 2012

In a much anticipated decision, the Supreme Court of Canada has overturned thedecision of the Ontario Court of Appeal in R.v. Cole, and has concluded that the evidence obtained through a warrantlesspolice search of a laptop issued by the employer to a teacher should not havebeen excluded.

The school board had provided theteacher, Mr. Cole, with a laptop that he was free to use on his own time and totake home on weekends. The use of the laptop was governed by aschool board policy, which allowed for incidental personal use of theemployer’s information technology. The policy stated that teachers’ emailcorrespondence remained private, but was subject to access by schooladministrators in certain circumstances. While the policy did not addressprivacy in other types of files, it did state that “all data and messagesgenerated on or handled by board equipment are considered to be the property of[the school board]“.

Mr. Cole had administrator rights to theschool network and used this to access a female student’s email which containednude photographs of her. Mr. Cole copiedthese images onto a hidden file on his laptop. During routine systems maintenance, a computer technician employed bythe school board discovered the hidden file on Mr. Cole’s laptop and informedthe school’s principal. The principal had the photographs copied to a disk andseized Mr. Cole’s laptop. A furthersearch of the temporary internet files stored on the laptop revealed that Mr.Cole had viewed other pornographic websites and photographs.

The school board turned the disk and thelaptop over to the police. The police were informed that while Mr. Cole was allowed to use the laptopfor personal use, it was school board property and there was a school boardpolicy regarding the use of the laptop. Onthat basis, the police searched the laptop without a warrant. Mr. Cole was arrested and thereafter chargedunder the Criminal Code withpossession of child pornography and use of a computer contrary to the Code.

While the Supreme Court held that thepolice should have obtained a warrant, and that the warrantless search was abreach of Mr. Cole’s rights against unreasonable search and seizure under the Canadian Charter of Rights and Freedoms,the Court disagreed with the Ontario Court of Appeal’s finding that theevidence should be excluded.

The Supreme Court held that the evidenceshould not have been excluded because the police were acting on a good faithbelief that a warrant was not necessary (because the laptop was school boardproperty and there was a policy governing its use) and the breach was notegregious.

Regarding the school board’s right toseize and search the content of Mr. Cole’s laptop, the Supreme Court affirmedthe Ontario Court of Appeal’s conclusion that the school principal had astatutory duty to maintain a safe school environment, and, by necessaryimplication, a reasonable power to seize and search a school-board-issuedlaptop where the principal had reasonable grounds to believe that the laptopcontained compromising photographs of a student.

The Supreme Court’s decision confirmsthat employers can search workplace computers for legitimate business reasons.The decision further underscores the benefits of implementing  policies which clearly state therights and limits of personal use of employer technology and put employees onnotice that they should not expect privacy on workplace devices when they areused outside of the workplace.

R.v. Cole, 2012 SCC 53

Please contact Partner Nazeer Mitha if you have any questions relating to the information presented in this article.