Ontario Court of Appeal Recognizes Right of Privacy for Personal Files on Work Computers

In reasons for judgment that are lengthy and complex, a unanimous panel of the Ontario Court of Appeal (Court of Appeal) has ruled that absent specific workplace rules to the contrary, employees have a right of privacy for personal information stored on work-issued computers. In the course of performing a remote, routine anti-virus maintenance of a laptop computer owned by the school board but used by a teacher (Cole), a school board technician found that the computer‘s hard drive contained nude images of a female student. After the technician informed the school principal of what he had found, the technician was directed to copy the images to a disc and to require Cole to surrender the computer. Later, a school board official searched the laptop and copied temporary Internet files onto a second disc. The two discs and the laptop were turned over to the police, who then, without a search warrant, examined the materials. Cole was charged with several criminal offences and tried in the Ontario Court of Justice. On a pre-trial application, the relevant evidence was excluded on a finding that the police had infringed Cole’s rights under section 8 of the Charter of Rights and Freedoms (Charter) because Cole had had a reasonable expectation of privacy in the contents of the laptop. On appeal to the Superior Court of Justice, the trial judgment was overturned and the matter remitted for retrial, the appeal judge ruling that Cole had had no reasonable expectation of privacy in the laptop. On further appeal, the Court of Appeal found some of the evidence to be admissible and some not, and the matter was remitted for trial to the Ontario Court of Justice. Cole was found to have had a reasonable expectation of privacy in the personal information stored on the laptop since the school board gave him exclusive possession of the laptop, provided explicit permission to use the laptop for personal use, and allowed him to take the laptop home on evenings and weekends. Nonetheless, the reasonable expectation of privacy was subject to the limited right of access by the employer’s technician to perform work-related functions. Because of this limited right of access, there was no reasonable expectation of privacy with respect to the technician’s search, and therefore the Charter was not engaged. The Court of Appeal further ruled that the subsequent searches and seizures by the principal and the school board also were reasonable and were not, therefore, in breach of section 8 of the Charter. However, said the Court of Appeal, the police had breached the Charter by not obtaining a warrant before searching the materials (when they had ample opportunity to do so), by relying on the consent of the school board to search the computer, and by using an intrusive technique in copying the entire contents of the laptop’s hard drive. As a result, the contents of the laptop and disc containing the temporary Internet files were inadmissible. Nevertheless, the Court found that Cole did not have a continuing privacy interest in the disc with the photographs since the photographs were taken from the school’s network, using the school’s computer and were the subject of the privacy interest of a student. Because Cole did not have a privacy interest in the photographs, their delivery to the police was not a search and seizure within the meaning of section 8 of the Charter, and therefore the photographs were admissible. In reaching its conclusions, the Court of Appeal cited several decisions of both the Supreme Court of Canada and US courts involving privacy, and expressed its findings in a way suggesting a considerable familiarity with the IT sector and employment practices relating to use of technology. All of this implies that the Cole decision will be watched closely in the setting of employment policies involving IT and the use of computers. For the full text of R v Cole (2011 ONCA 218), see: http://www.ontariocourts.on.ca/decisions/2011/2011ONCA0218.htm Summary by: Adam Lis