( Disponible en anglais seulement )
The Supreme Court of Canada has released its much anticipated decision in R. v. Cole, a criminal law case primarily concerned with an accused child pornographer’s right to be secure against unreasonable search by the police under section 8 of the Canadian Charter of Rights and Freedoms, but with potential implications for the privacy rights of employees in the workplace within the context of a workplace investigation.
The accused in this case was a high-school teacher charged with possession of child pornography and unauthorized use of a computer contrary to the Criminal Code.
Mr. Cole 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 Mr. Cole’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, who without warrant reviewed their contents and then created a mirror image of the hard drive for forensic purposes.
Lower Court Decisions
The trial judge excluded all of the computer material found on Mr. Cole’s work-issued laptop computer on the basis that Mr. Cole’s Charter right to be secure against unreasonable search or seizure had been violated and because, in the trial judge’s view, the admission of the improperly obtained evidence would bring the administration of justice into disrepute as per section 24(2) of the Charter.
The appeal court reversed the decision of the trial judge, finding that there was no breach of the Charter. The Ontario Court of Appeal set aside the appeal court’s decision and excluded the disc containing the temporary internet files, the laptop, and the mirror image of its hard drive.
Supreme Court of Canada Decision
The Supreme Court of Canada (“SCC”) agreed with the Ontario Court of Appeal that Mr. Cole’s section 8 Charter right was violated, but disagreed with the Court of Appeal and found that the material found on Mr. Cole’s work-issued laptop computer should not be excluded from the evidentiary record on the basis of the test set out in section 24(2) of the Charter. In doing so, the SCC made a number of significant pronouncements on the subject of privacy and held that whether Mr. Cole had a reasonable expectation of privacy depended upon the totality of the circumstances.
The SCC stated that computers that are reasonably used for personal purposes – whether found in the workplace or the home – contain information that is meaningful, intimate, and touching on the user’s biographical core. The reason provided was that internet-connected devices reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the internet. As such, Canadians may reasonably expect privacy in the information contained on their own personal computers as well as information on work computers where personal use is permitted or reasonably expected.
The SCC explained that privacy is a matter of reasonable expectations. An expectation of privacy will attract Charter protection if reasonable and informed people in the position of the accused would expect privacy. The more personal and confidential the information, the more willing reasonable and informed Canadians will be to recognize the existence of a constitutionally protected privacy interest. However, other considerations diminished Mr. Cole’s privacy interest.
The school board had in place a 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, despite the fact that Mr. Cole disputed whether the policy specifically applied to staff. However, the Supreme Court of Canada stated that, “written polices are not determinative of a person’s reasonable expectation of privacy. Whatever the policies state, one must consider the totality of the circumstances in order to determine whether privacy is a reasonable expectation in the particular situation.” These considerations, the SCC found, diminished but did not eliminate Mr. Cole’s privacy interest in his work-issued laptop, which was distinct from a personal computer. In the result, the SCC held that the nature of the information in issue in this case heavily favoured recognition of a constitutionally protected privacy interest.
The accused did not challenge the school board’s right to inspect the laptop, so the Supreme Court was clear to say that this issue would be left for another court to decide on another occasion. Nevertheless, the Court did comment on the school board’s search and seizure, despite the teacher’s right to privacy, stating:
In any event, I agree with the Court of Appeal. 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. I likewise agree with the Court of Appeal that other school board officials had the same implied powers of search and seizure as the principal…
However, the fact that the school board had acquired lawful possession of the laptop for its own administrative purposes did not vest in the police lawful authority to conduct a warrantless search and seizure of the computer for the purposes of a criminal investigation.
Despite this, the SCC held that the truth-seeking function of the criminal trial process would be better served by admission of the evidence, as opposed to its exclusion, and noted that had the police complied with the applicable constitutional requirements, the evidence would have been discovered in any event.
As far as the school board’s conduct was concerned, the SCC held that it was within its rights to seize and search Mr. Cole’s work-issued laptop.
Therefore, while an employer’s ownership of computers and written policies may not be determinative, they are factors in determining whether an employee has a reasonable expectation of privacy in a particular situation for the purposes of a disciplinary or criminal investigation.
Since privacy is a matter of reasonable expectations, it is critical that employers have workplace policies in place that clearly set out the ground rules for employees’ use of company-supplied computers or other electronic devices and which clearly state that the employer will monitor their use to ensure compliance with all employer policies and laws. As such, we recommend that all employers regularly review and update their existing policies or, if they haven’t already done so, implement 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.