June 10, 2013 By: Christopher C. Rootham
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In a late 2012 ruling in a criminal case, the Supreme Court of Canada found that a high school teacher's Charter rights, protecting him against unreasonable search and seizure, were breached when the school permitted a police search of his work-issued laptop.

The laptop had been provided to Mr. Cole for teaching purposes and for monitoring students' computer use. The school also permitted incidental personal use of the laptop.

In the course of monitoring data stored on students' computers, Mr. Cole copied nude photographs of a student from her email account.

A computer technician discovered the photographs during a routine virus scan of Mr. Cole's hard drive. The technician notified the school principal, who instructed him to copy the photographs onto a CD. The principal then seized Mr. Cole's laptop and handed it, the CD, and a copy of Cole's temporary Internet files (which contained pornographic images) over to the police. The police reviewed their contents, without a warrant, and charged Mr. Cole with possession of child pornography.

A unique feature of this case was that because the workplace was a school, the principal and the school board had the power to search Mr. Cole's laptop (on reasonable grounds) based on their statutory obligation to maintain a safe school environment. The school board was also legally entitled to inform police of its discovery. Nonetheless, the principal did not have the right to consent to a warrantless police search of the computer on Mr. Cole's behalf, even though the school owned the computer.

The Court held that Mr. Cole had a reasonable expectation of privacy in the personal information he had stored on the school's laptop. It explained that the reasonableness of an employee's privacy expectation will depend on the "totality of the circumstances," including whether personal use of the employer's computers is permitted or reasonably expected. Other relevant factors will be the nature of the information at issue, the ownership of the computer, and particular workplace policies, practices and customs.

The Court deliberately left "for another day" the larger issue of an employer's general right to monitor computers issued to employees and it remains to be seen what impact the Cole decision will have in the general employment law context.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law