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Is Employee Data Saved on an Employer-Owned Handheld Device or Computer Confidential?

Posted On: January, 21 2015

This blog considers the implications that a recent criminal law decision may have for employment law. It is not often that criminal law and employment law intersect, but a recent evidentiary issue decided by the Court of Appeal for Ontario could have significant implications for employment law cases dealing with dismissals for cause or misconduct.

In the recent decision of  R. v. Cole, 2011 ONCA 218 (CanLII), the Court of Appeal considered the case of a Sudbury high-school teacher who was charged with possession of child pornography and unauthorized use of a computer contrary to the Criminal Code.

The teacher had saved illegal images on a laptop that was provided to him by his employer and which the employer owned. When the teacher’s laptop was serviced by a school board computer technician, the technician discovered child pornography on the laptop, including images of a student at the school where the teacher worked. The technician reported the images to the school, which notified the school board, and eventually the police became involved. The police never obtained a search warrant to access the images that were stored on the laptop. Instead, the police proceeded on the basis that the employer’s permission to search the images was sufficient authority.

The trial judge excluded the images from evidence on the basis that they were obtained by a warrantless search contrary to section 8 of the Charter of Rights and Freedoms. The trial judge found that the accused had a reasonable expectation of privacy concerning personal documents saved on the work laptop. The trial judge decided to exclude the evidence on the basis that the evidence was obtained in a manner that breached the accused person’s right to be free from unreasonable search and seizure.

The Summary Judgment Appeals Judge reversed the Trial Court’s decision to exclude the evidence. This decision was appealed to the Ontario Court of Appeal. The Court of Appeal took a contextual approach in determining whether a reasonable expectation of privacy existed, noting the following factors:

  • the laptop was a work computer owned by the school board
  • the computer was issued for employment purposes with access to the school network
  • the school board gave the teachers possession of the laptops
  • explicit permission was given to use the laptops for personal use
  • permission was given to take the computers home on evenings, weekends and summer vacation
  • teachers used their computers for personal use, they employed passwords to exclude others from their laptops, and they stored personal information on their hard drives
  • there was no clear and unambiguous policy to monitor, search or police the teachers’ use of their laptops

It is important to note that the Court of Appeal did not find that either the school or the school board had breached the accused person’s section 8 rights – only that the police had breached his rights.

In the R. v. Cole decision, the Court of Appeal has clearly stated that in the right circumstances employees can have a reasonable expectation of privacy in the information stored on employer-owned devices. Mere ownership of a device does not automatically entitle the employer or the police to search personal information that may be stored on the device.

 

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