The Supreme Court of Canada recently released its decision in R. v. Cole, 2012 SCC 53, in which the Court decided that employees have a reasonable expectation of privacy in the information contained on work computers where personal use is permitted by an employer. The Court confirmed that it is a breach of section 8 of the Charter of Rights and Freedoms for the state to seize and/or search an employee’s work computer without consent of the employee or prior judicial authorization. However, as in the case here, not every breach of the Charter will be cause for a court to exclude the evidence obtained.
Mr. Cole is a high school teacher who was provided with a work computer and was permitted to use his work computer for personal use. A technician performing maintenance on the computer discovered a hidden folder containing nude photos of a female student. The technician notified the school principal and copied the pictures to a CD. The principal seized the laptop computer and the school board technicians copied the temporary internet files onto a second CD. Both the laptop and CDs were then handed over to the police who, without a warrant or consent, searched the computer, viewed its contents, and created a mirror image of the hard drive for further forensic purposes. Mr. Cole was subsequently charged with possession of child pornography and the unauthorized use of a computer, contrary to sections 163.1(4) and 342.1(1) of the Criminal Code.
Section 8 of the Charter states that “everyone has the right to be secure against unreasonable search or seizure.” The Supreme Court determined that although the school principal had legal authority to seize and search Mr. Cole’s computer and hand it over to the police, the police did not have consent or a warrant to seize and search the computer. As a result, the police violated Mr. Cole’s rights under section 8 of the Charter.
The Court found that an individual’s reasonable expectation of privacy in one’s personal computer extends to an employee’s work computer, though it may be a diminished expectation of privacy for personal use on a work computer. An employee’s personal use on a work computer is protected under section 8 of the Charter and a state authority requires consent or legal authority to seize and search it.
Despite finding that Mr. Cole’s section 8 rights were breached, the court (Abella J. dissenting) decided not to exclude the evidence under section 24(2) of the Charter finding that the breach did not bring the administration of justice into disrepute.
Computer use in the workplace is now commonplace, but the law has taken some time to catch up to these changes in the workplace. Many employers provide their employees with work computers, laptops, and mobile phones on which personal use is permitted. The Supreme Court of Canada takes an important step in R. v. Cole by defining and clarifying the privacy rights of employee’s with respect to the use of electronic devices and computers in the workplace.