• What Does Privacy Look Like To You?
  • December 10, 2012 | Author: Richard (Rick) M. Dunlop
  • Law Firm: Stewart McKelvey - Halifax Office
  • In a recent Supreme Court of Canada decision, R. v. Cole, it was found that a high school teacher had a reasonable expectation of privacy in the information contained on his work-issued computer. That expectation was not absolute, however, as the school had policies and practices in place that limited the teacher's expectation of privacy.

    The facts

    Mr. Cole was a high school teacher with a work-issued laptop computer. He was permitted by the employer, to use the computer for "incidental personal purposes". Such purposes included browsing the internet and storing personal information on the computer's hard drive. Turns out that some of the information he stored included nude and semi-nude photos of a female underage student.

    The photos were found in a hidden folder by a technician performing regular maintenance on the system. Upon being notified, the principal seized the computer and had the photos and temporary Internet files copied onto CDs. The police were called to investigate. Mr. Cole was charged with possession of child pornography and unauthorized use of a computer.

    Judicial history

    At trial, the judge excluded all of the computer material pursuant to Section 8 (unreasonable search and seizure) and the remedy Section 24(2) (exclusion of evidence due to infringement or denial of rights) of the Canadian Charter of Rights and Freedoms (the "Charter"); the charges were dismissed.

    That decision was reversed at the summary conviction appeal court, which did not find a Section 8 breach.

    The Ontario Court of Appeal reversed the summary conviction appeal decision, holding that there was a Section 8 breach; the disc with the temporary Internet files, the laptop, and the copy of the hard drive were all excluded.

    The Supreme Court of Canada gave leave and a third appeal in this case was heard.

    The decision

    What is perhaps of greatest interest about this decision (to private-sector employers, at least) is the discussion about the extent of an employee's reasonable expectation of privacy in a work-issued computer. This is particularly relevant, given the Ontario Court of Appeal's recent recognition of a tort of intrusion on seclusion and the view of some arbitrators in the union context that unionized employees enjoy a right to privacy.

    While making it clear that it was going to "leave for another day the finer points of an employer's right to monitor computers issued to employees," the court nonetheless commented on the relationship between the "operational realities" of the workplace and an employee's right to privacy.

    Importantly, there is no one determinative factor regarding whether an employee has a reasonable expectation of privacy; rather a consideration of the "totality of the circumstances" is necessary. In considering the totality of the circumstances in Mr. Cole's case, the court said that the nature of the information "heavily favours recognition of a constitutionally protected privacy interest" because Mr. Cole's personal use of his work-issued laptop "generated information that is meaningful, intimate and organically connected to his biographical core".

    This privacy right was diminished, though not entirely, by the fact that the school board owned the laptop and had put into place workplace procedures, practices and policies (which addressed ownership of both the computer as well as the information stored upon the computer; whether employees were allowed to use the computer for personal use (they were); and the fact that users of school computers should not assume that files stored on the computers will be private) regarding use of school computers. (We note that non-government employers who are not subject to the Charter may have a stronger basis to argue that their written policies should be given more weight.)

    What this means for you

    It would appear from this decision that the existence of privacy policies is but one factor to consider when determining whether an employee had a reasonable expectation of privacy. However, it should not be taken as detracting from the importance of the employer having a carefully worded policy regarding an employee's computer use.

    Given the operational realities of many jobs (e.g. 24-hour access to smartphones, work from home arrangements, etc.), the fact is that many employees will utilize their workplace devices for personal purposes. Having a policy which addresses such realities may, when it comes to determining the boundaries of an employee's expectation of privacy, go a long way.