Canada’s Top Court Rules Teacher’s Privacy Interest in Laptop Diminished Due to School Board Ownership of Computer and Workplace Policies Regarding Computer Use

June 25, 2013

The accused was a high-school teacher charged with possession of child pornography and unauthorized use of a computer contrary to the Criminal Code.

The teacher was provided with a laptop by the school board as part of his employment. He was permitted to use and did use his work-issued laptop computer for non-work related purposes. While performing maintenance activities, a school board computer technician found a hidden folder containing nude and partially nude photographs of a female student on the teacher’s laptop. The technician notified the principal, and in accordance with the principal’s instructions, copied the photographs to a CD. The principal seized the laptop, and school board technicians copied the temporary internet files onto a second CD. The laptop and both CDs were handed over to the police at their request.

The Supreme Court held that whether Mr. Cole had a reasonable expectation of privacy depended upon the totality of the circumstances.  Who owned the laptop was not determinative.

The Supreme Court explained that privacy is a matter of reasonable expectations; the more personal and confidential the information, the greater the privacy interest. However, other considerations diminished Mr. Cole’s privacy interest, such as the school board’s policy and procedures manual, which made it clear that all data and messages generated on school board equipment was owned by the school board. The school principal also reviewed with the staff the school board’s acceptable use policy for technology and indicated that it applied to staff.

The accused did not challenge the school board’s right to inspect the laptop, but the Supreme Court did comment on the school board’s search and seizure, stating:

“The principal had a statutory duty to maintain a safe school environment (Education Act, R.S.O. 1990, c. E.2, s. 265), and, by necessary implication, a reasonable power to seize and search a school-board-issued laptop if the principal believed on reasonable grounds that the hard drive contained compromising photographs of a student.”  

This implied power is not unlike the one found by the majority of this Court in M. (M.R.), at para. 51.

We recommend that all employers regularly review and update their existing policies regarding the use of workplace computers and/or other electronic devices. Such policies should consider what will be monitored, how, and for what purposes.

 

 

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