A recent ground-breaking decision from the Ontario Court of Appeal comes hot off the presses just in time for this issue of Tech Central.
The Court released its decision in R. v. Cole (2011 CarswellOnt 1766) on March 22, and already it has raised many eyebrows in the legal community, as lawyers, prosecutors and police contemplate the effect it will have on computer search and seizure practices in the province and across Canada.
At issue was whether a high-school teacher had a reasonable expectation of privacy in the content of his school-issued laptop computer, and whether such expectation extended to protect him from unreasonable police search and seizure of images of child pornography stored on that computer. It is an issue on which there has so far been little legal authority or guidance in Canada.
The Court grappled with the unique facts of the case, including the facts that the school board had issued laptops to many teachers at the school and expressly permitted them to use the laptops for personal use, allowing them to be taken home on evenings, weekends and even over the summer break. Other teachers provided testimony as to the importance of maintaining a sense of privacy in the personal information they stored on their school-issued laptops.
The Court of Appeal appears to have been influenced by this position, noting "The contents of the hard drive of a laptop may contain extremely personal information such as medical and financial reports, personal journals, emails and appointments." It was important to the Court to maintain a sense of privacy in that information. Though the school board owned the computer and had the right to search and seize its contents for its own internal administrative and disciplinary purposes, it did not have the right to give police access to that material for criminal search and seizure purposes.
Many factors will play a role in whether an employee has a reasonable expectation of privacy in a work-issued computer. The Court contemplated these factors:
- Whether the computer in question is a laptop or a desktop model
- Whether the computer and/or specific files are password-protected
- Whether the employer's IT department has unfettered access to the computer
- Whether employee computer usage is routinely monitored by the employer
- Whether there is a well-known usage policy in place
- Whether the employee has the employer's express permission to use the computer for personal use
- Whether the employee is permitted to take the computer/laptop home
In this technological age, it has come to be understood generally that files and content created or kept on a work computer are owned by the employer and not by the employee. That may still be so in the civil context, but R. v. Cole has added a new dimension to that general understanding. Depending on the circumstances, the employee may retain a reasonable expectation of privacy extending beyond the employment relationship to protect from police search and seizure.
We will continue to monitor this issue and provide updates here at Tech Central as new developments arise.