Extent of privacy at work clarified in Supreme Court decision

FEDERAL (Canadian OH&S News)

Canadians can still expect privacy in the information contained on work-issued computers if personal use is permitted or reasonably expected, a recent ruling from Canada’s highest court decided.

The Supreme Court of Canada has ordered a new trial for a teacher charged with possession of child pornography, after ruling that excluding unlawfully-obtained material found on his work-issued laptop would negatively impact the criminal trial process. The decision, released on Oct. 19, said that although the high school teacher’s privacy interests were diminished due to school board ownership of the laptop and workplace policies regarding computer use, the expectation of privacy is warranted where the computers are allowed for personal use.

“While workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sort of operational realities do not in themselves remove the expectation entirely: The nature of the information at stake exposes the likes, interests, thoughts, activities and searches for information of the individual user,” wrote Justice Morris Fish for the 6-1 majority.

The case centred on the privacy interests of Richard Cole, who was charged after a computer technician found a hidden folder containing nude and partially nude photographs of an underage female student on his laptop during maintenance activities. The technician notified the principal, who ordered the photographs be copied to a CD. The principal then seized the laptop and technicians copied temporary Internet files onto a second disc. The laptop and both discs were handed over to the police, who reviewed their contents and created a mirror image of the laptop’s hard drive for forensic examination, all without a warrant.

The Supreme Court decision notes that the trial judge excluded all of the computer material, finding that it breached the right to be secure from unreasonable search or seizure pursuant to Section 8 of the Canadian Charter of Rights and Freedoms. On appeal, the Court of Appeal for Ontario set aside that decision and excluded all material except for the disc containing the photographs, which it found to be legally obtained and admissible.

In ordering a new trial, the Supreme Court ruled that the police infringed on Cole’s rights under Section 8 of the Charter, as receipt of the computer did not afford the police warrantless access to the personal information contained within. However, the conduct of the police officer in this case was not an egregious breach of the Charter, the Supreme Court ruled.

“In sum, the admission of the evidence would not bring the administration of justice into disrepute. The breach was not high on the scale of seriousness, and its impact was attenuated by both the diminished privacy interest and the discoverability of the evidence,” Fish wrote, explaining that had the officer obtained a warrant, the evidence would have been discovered.

“The exclusion of the material would, however, have a marked negative impact on the truth-seeking function of the criminal trial process. For all these reasons, I would not exclude the evidence unlawfully obtained by the police in this case,” he wrote.

Erik Marshall, a lawyer with Miller Thomson LLP in Toronto, said it’s important to keep in mind that the decision dealt primarily with the Charter’s unreasonable search and seizure provisions as opposed to an employee’s privacy rights with the context of a workplace investigation.

Still, Marshall said that employers can “manage employees’ expectations by making sure you have a policy that clearly states computers and the data on computers are the property of the company, outline the acceptable use of the computer and put employees on notice that their use will be monitored.” In this case, the school board did all three.

“One thing that employers will be well-cautioned to keep in mind is that it’s one thing to have a policy, the other thing is to communicate that policy to employees and to make sure that everyone that comes into the organization is trained on that policy,” he said. “So sit people down for an hour and go through what the policy actually says.”

Abby Deshman, director of the public safety program at the Canadian Civil Liberties Association in Toronto, noted that while the association was generally pleased with the decision, it did not specifically address the scope of an employer’s authority to invade employee privacy rights.

“The Supreme Court has clearly stated that we do not lose our privacy rights simply because we step into a workplace or use a computer or cell phone owned by our employers,” she said, adding that the court also confirmed that Internet and web-browsing history is protected private information. “They have also clearly stated that privacy rights belong to each of us, and no one can unilaterally waive our rights on our behalf.”

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