Legal News

Employees have Limited Privacy Rights on Employer – Issued Computers

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

The school board had provided the teacher, Mr. Cole, with a laptop that he was free to use on his own time and to take home on weekends. The use of the laptop was governed by a school board policy, which allowed for incidental personal use of the employer’s information technology. The policy stated that teachers’ email correspondence remained private, but was subject to access by school administrators in certain circumstances. While the policy did not address privacy in other types of files, it did state that “all data and messages generated on or handled by board equipment are considered to be the property of[the school board]”.

Mr. Cole had administrator rights to the school network and used this to access a female student’s email which contained nude photographs of her. Mr. Cole copied these images onto a hidden file on his laptop. During routine systems maintenance, a computer technician employed by the school board discovered the hidden file on Mr. Cole’s laptop and informed the school’s principal. The principal had the photographs copied to a disk and seized Mr. Cole’s laptop. A further search 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 the laptop over to the police. The police were informed that while Mr. Cole was allowed to use the laptop for personal use, it was school board property and there was a school board policy regarding the use of the laptop. On that basis, the police searched the laptop without a warrant. Mr. Cole was arrested and thereafter charged under the Criminal Code with possession of child pornography and use of a computer contrary to the Code.

While the Supreme Court held that the police should have obtained a warrant, and that the warrantless search was a breach 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 the evidence should be excluded.

The Supreme Court held that the evidence should not have been excluded because the police were acting on a good faith belief that a warrant was not necessary (because the laptop was school board property and there was a policy governing its use) and the breach was not egregious.

Regarding the school board’s right to seize and search the content of Mr. Cole’s laptop, the Supreme Court affirmed the Ontario Court of Appeal’s conclusion that the school principal had a statutory duty to maintain a safe school environment, and, by necessary implication, a reasonable power to seize and search a school-board-issued laptop where the principal had reasonable grounds to believe that the laptop contained compromising photographs of a student.

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

R. v. Cole, 2012 SCC 53

Questions relating to the content of this article may be directed to Nicole Toye.