Do Employees Have Privacy Rights on Their Employers’ Computers?

André R. Nowakowski, Toronto

The recent Ontario Court of Appeal decision, R. v. Cole, addressed the issue of an employee’s expectation of privacy on an employer’s laptop computer.  At first glance, this decision appears to have far-reaching implications for an employer’s right to monitor and access workplace computers used by employees.  However, it is important to review closely the decision and consider how it could affect your workplace.

The case involved a school teacher who was charged with possession of child pornography and unauthorized use of a computer contrary to the Criminal Code.  A technician of the school board was performing routine diagnostics on the computer system and noticed irregularities in the teacher’s laptop.  The technician discovered that the teacher had accessed a student’s computer on the school server and downloaded nude pictures of another underage student on to his laptop.  The school board investigated further and discovered that the internet browsing history of the teacher on the laptop contained a large number of pornographic images.  The pictures of the student and the internet history were copied onto two separate discs and were provided to the police along with the laptop.  The police assumed that the computer was school property and did not obtain a warrant to view and search the discs and laptop.  Ultimately criminal charges were laid against the school teacher.

At issue in the case was whether the employee had a reasonable expectation of privacy with regard to the contents of the laptop computer and whether the individual’s rights under the Canadian Charter of Rights and Freedoms were breached by the search and seizure of certain contents in the laptop. 

The Court of Appeal found that the school teacher did have a reasonable expectation of privacy with regard to the contents of his laptop computer.  The following factors appeared to have been central to the Court of Appeal’s decision:

• The teachers were given possession of the laptops and explicit permission to use the laptops for personal use;
• The teachers had permission to take the computers home on evenings, weekends, and summer vacation;
• The teachers used their computers for personal use, stored personal information on the hard drives, and used passwords to exclude others from the laptops;
• “There was no clear and unambiguous policy to monitor, search or police the teachers’ use of their laptops.”

The school board did have a policy in place governing certain aspects relating to the use of workplace computers.  However, the policy did not address the monitoring, searching, and policing aspect that was focussed on by the Court of Appeal.  This deficiency, combined with the practice in place in terms of how teachers were permitted to use, and did use, the laptops, seems central to the Court of Appeal’s conclusion that there existed a reasonable expectation of privacy.

In its decision, the Court of Appeal assumed that the Charter applied to the school board in question.  Notwithstanding the lack of a clear and unambiguous policy on the monitoring and searching issue, the Court of Appeal ultimately held that the searches and seizure performed by the school board and technician did not violate the Charter rights of the school teacher.    However, the Court of Appeal found that the police breached the Charter when they viewed the disc with the internet browsing history and searched the laptop.  As a consequence, that evidence was excluded from the criminal trial.  The Court of Appeal ruled that the disc with the nude pictures of the underage student was admissible into evidence since the pictures were taken from the central school computer server and the teacher therefore had no reasonable expectation of privacy with regard to the pictures.

It is difficult to predict the impact of this decision on the rights of employers to monitor computer use by employees in the workplace and to ultimately impose discipline.  In some respects it is a very fact specific decision in a criminal context.  However, it seems clear that a well-crafted policy that is enforced consistently will go a long way in addressing the concerns of the Court of Appeal.  This is a good time for all employers to either review and update existing policies or to create and implement new policies regarding the use by employees of workplace computers.

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