Employee Privacy? What Privacy?

Cole concerned a teacher who was charged with possession of child pornography and unauthorized use of a computer. A school-board technician discovered nude photos of a student while performing maintenance on the teacher’s laptop. The technician notified the principal about the photos and the school turned the laptop over to the police, who reviewed it without a warrant. This led to the constitutional challenge.

The Ontario Court of Appeal held that the police had engaged in an unreasonable search and seizure, thereby violating the teacher’s reasonable expectation of privacy with regard to the contents of the laptop.

As such, the Court of Appeal found that the evidence on the laptop was inadmissible under section 8 of the Charter of Rights and Freedoms, which protects Canadians against unreasonable search and seizure.

On appeal, the SCC took a different view. The Court determined that even though the evidence was not properly obtained, disallowing it would bring the administration of justice into disrepute.

In deciding whether the employee in question had a reasonable expectation of privacy, the SCC set out the following test: to determine whether an employee has a reasonable expectation of privacy regarding information stored on a work computer, the employee must have had a subjective expectation of privacy. Further, this expectation must be objectively reasonable.

In Cole, the SCC emphasized that the laptop was owned by the school board, and that the school board had workplace policies and practices in place with respect to the use of technology at the school. While these considerations diminished the teacher’s expectation of privacy in his work laptop, they did not eliminate his privacy interests entirely.

Although the school board had an obligation to maintain a safe school environment and therefore had a reasonable power to search and seize a school-board laptop, this power did not extend to the police. However, the school board was entitled to inform the police of its discovery, which would have permitted the police to obtain a search warrant for the computer.

In reaching its decision, the SCC established that workplace policies are not determinative of an employee’s reasonable expectation of privacy. However, clear policies may diminish the expectation of privacy that employees might otherwise have.

In a subsequent decision, R. v. Vu, the SCC held that police are required to have specific authorization in a search warrant to search the data in a computer, describing the privacy interests arising in computer searches as “markedly different” from those at stake in searches of other types of receptacles (such as cupboards and filing cabinets).

The Court made no distinction between a “personal” computer and a “security” (or workplace) computer because both were capable of storing personal information.

These decisions, while criminal cases, provide further guidance on how our courts will treat an employee’s expectation of privacy on workplace devices, and the rights of employers to conduct searches of these devices. Further, Cole, in particular, indicates that workplace policies form part of the big picture that a court will look at when determining what an employee’s reasonable expectation of privacy was in the circumstances. As such, it is useful for employers to have privacy and technology policies in place in order to establish clear expectations among employees and to better address the myriad issues that may arise with the use of workplace computers.

Information provided by Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.

This article may not be republished without the express permission of the copyright owner identified in the article.