publication date: May 7, 2011
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author/source: Barry Kwasniewski, Carters Professional Corporation
When
employees use work computers for personal use, where are the boundaries between
what information can and cannot be protected by their reasonable expectation of
privacy? Many charities and not-for-profits all
ow employees to use work
computers for personal activities such as downloading, storing information, or
browsing the Internet.
However, in
a recent decision of the Ontario Court of Appeal (
R. v. Cole [2011] O.J. No. 1213), the
court discussed an employee's expectation of privacy for information stored on
a work computer. The following summarizes this decision and discusses the
privacy implications for employers and employees.
The case and its background
Richard Cole, a teacher employed by the Rainbow
District School Board, was criminally charged with possession of child
pornography after the school board's IT staff found nude photographs of a
16-year-old student on his school-owned laptop computer. In his defence, Mr. Cole
applied to exclude evidence based on an alleged breach of his right to be
protected from unreasonable search and seizure, pursuant to section 8 of the Canadian
Charter of Rights and Freedoms.
The school had
provided him with a laptop for use in teaching communication technology and
supervising a laptop program for students. At some point during his employment,
he accessed a student's email account and copied nude photographs of one of the
students onto the hard drive of that laptop. One of the computer technicians
observed an unusual amount of activity between the teacher's laptop and the
school's server, which sparked a search of the contents of the teacher's hard
drive. In this search, the computer technician came across the nude photographs
and reported the images to the principal of the school.
That information was then provided
to the police, who conducted a warrantless search of the laptop and a disk containing
the teacher's temporary Internet files. The teacher was eventually charged with
possession of child pornography and unauthorized use of a computer. In the
Ontario Court of Justice, the evidence was excluded, but on appeal to the
Superior Court of Justice, the trial judge's decision was overturned and sent
back for retrial. The teacher appealed this decision to the Ontario Court of
Appeal, which allowed the appeal in part, and sent the matter back for
trial.
The Ontario
Court of Appeal decision raised several issues, but the following analysis
focuses on whether the teacher had a reasonable expectation of privacy for the
contents of a work computer on which he was entitled to store personal
information.
Privacy, safety for both teacher and students
Ontario
Court of Appeal Justice Karakatsanis discussed whether or not the teacher had a
reasonable expectation of privacy in the contents of the laptop. The reasoning of the judge involved an
analysis of the factors identified in the leading Supreme Court of Canada
decision in R. v. Edwards ([1996] 1 S.C.R. 128.). Applying this test, the Ontario Court of
Appeal concluded that the teacher had a reasonable expectation of privacy in
the contents of the laptop because:
- While the teacher did not own the laptop, the
teachers at the school were granted exclusive possession of the laptops;
- The accused was given access to the computer
on weekends and during vacations for personal use;
- Access to the computer was protected by a
password;
- It was the norm for other teachers on the
board to store sensitive personal information on their work laptops as well;
and
- The policy provisions dealing with the
monitoring or search of teacher laptops were found to be vague.
While the
court held that the teacher had a reasonable expectation of privacy, the
actions of the board in copying data and searching the laptop to support an
investigation into serious alleged misconduct did not violate the teacher's
rights. The court found that the school board had an ongoing obligation to take
steps to ensure a safe and secure learning environment for its students and to
protect the students' privacy rights.
These
actions were also implicitly authorized by the Education Act, as part of the principal's duty to ensure a safe
school environment. While the principal and school board's actions were deemed
appropriate by the Court, the warrantless seizure of the laptop by the police
was found to constitute a violation of section 8 of the Charter
Conclusion
Employers have the right to govern the terms of the use of
work computers by their employees. With the number of employees that now
require computers as part of their daily activities in the workplace, the
conflicts that could potentially arise will undoubtedly continue.
While decided in the criminal law context,
R. v. Cole illustrates the importance of
having a policy relating to personal use of work computers. Such a policy will
determine the extent to which an employee has any expectations of privacy of
materials stored on work computers. With all policies, it is important that
they be clearly communicated to employees to ensure adherence and provide a
basis for discipline in the event of a breach.
The law changes over time, and may differ according to the
jurisdiction where you operate. Therefore, it is advisable to have any new
policies reviewed by a lawyer before you implement them.
For a more detailed analysis, please see
Charity Law Bulletin No. 250 at
www.charitylaw.ca.
Barry W. Kwasniewski
practices employment and risk management law with Carters Ottawa office and would like to thank Kate Robertson,
Student-At-Law, for her assistance in the preparation of this Bulletin.
Contact Barry at
1-866-388-9596 or by email. 
