A. INTRODUCTION
Many employees have access to
a computer that is provided to them by their employer. Many charities and
not-for-profits allow for the personal use of these work computers, for
activities such as downloading, storing information, or browsing the Internet. However,
when employees use work computers for personal use, the boundaries become
blurred between what information can and cannot be protected by an individual’s
reasonable expectation of privacy. In R. v. Cole, a recent decision of the Ontario Court of Appeal, the court discussed an
employee’s expectation of privacy in information stored on a work computer.
This Charity Law Bulletin summarizes this decision and discusses the
privacy implications for employers/employees.
B. BACKGROUND TO THE DECISION
The Case
Richard Cole, a teacher employed by the
Rainbow District School Board, was criminally charged with possession of child
pornography after the school board’s IT staff found nude photographs of a 16 year
old Grade 10 student on his school-owned laptop computer. In his defence, Mr.
Cole applied to exclude evidence based on an alleged breach of his right from
unreasonable search and seizure, pursuant to section 8 of the Canadian
Charter of Rights and Freedoms. The decision deals with the factual and
legal issues arising on the application to exclude evidence obtained as a
result of the seizure.
The Facts
The teacher was provided with a laptop by
the school for use in teaching communication technology and supervising a
laptop program for students. As a supervisor, he was able to remotely access
the data stored on student computers within the school network. At some point during
his employment, he accessed a student’s email account and copied nude
photographs of one of the students onto the hard drive of his work laptop. As computer
technicians for the school board have the responsibility of monitoring and
maintaining the integrity and stability of the school network, one of the
computer technicians observed an unusual amount of activity between the
teacher’s laptop and the school’s server, which sparked a search of the
contents of the teacher’s hard drive. In this search, the computer technician
came across a hidden folder on this hard drive, which exposed the nude photographs
of a 16-year-old student. The computer technician reported the images to the principal
of the school. The teacher was asked to return his laptop to the school and
provide his password for access. The teacher refused to provide his password,
but the computer technician accessed the computer again and obtained several
compact discs of relevant information. The laptop was then handed over to the
police, along with compact discs of scanned information from the teacher’s computer.
The police then conducted a warrantless
search of the laptop and a disc with temporary internet files, which showed the
teacher’s internet browsing history. The teacher was eventually charged with
possession of child pornography and unauthorized use of a computer contrary to
ss.163.1(4) and 342.1(1) of the Criminal Code. In the Ontario Court of
Justice, the evidence was excluded under s. 24(2) of the Charter, as the
judge determined that the teacher had a reasonable expectation of privacy in
the contents of his laptop hard drive, and the warrantless search and seizure
of the material by the police officer constituted a breach of his Section 8 Charter rights. On appeal to the Superior Court of Justice, the trial judge’s decision
was overturned and sent back for retrial, since the appeal judge found that
there was no reasonable expectation of privacy in the contents of the laptop’s
hard drive. The teacher appealed this decision to the Ontario Court of Appeal,
which for the reasons described, allowed the appeal in part, and sent the
matter back for trial.
C. ISSUES
There
were several issues raised in the Ontario Court of Appeal decision:
¨ Did the teacher have a reasonable expectation of
privacy in the contents of the laptop?
¨ If so, did (a) the technician or (b) the
principal or (c) the school board breach s.8 of the Charter?
¨ Did the police breach s.8 of the Charter by
searching the laptop and the compact discs without a warrant?
¨ If so, did the trial judge err in excluding the
evidence?
The focus of this Charity Law Bulletin is whether the high-school teacher had a reasonable expectation of privacy in
the contents of a work computer on which he was entitled to store personal
information.
D. COMMENTARY
1. Reasonable Expectation of Privacy
Ontario Court of Appeal Justice
Karakatsanis discussed whether or not the teacher had a reasonable expectation
of privacy in the contents of the laptop. The reasoning of the judge involved
an analysis of the factors identified in the leading Supreme Court of Canada
decision in R. v. Edwards, which include:
¨ Whether the accused was present at the time of
the search;
¨ Whether the accused had possession or control of
the property or place searched;
¨ Whether the accused owned the property or place
searched;
¨ The historical use of the property or item;
¨ The ability to regulate access, including the
right to admit or exclude others from the place;
¨ The existence of a subjective expectation of
privacy; and
¨ The objective reasonableness of the expectation.
Applying these tests, the
Ontario Court of Appeal concluded that the teacher had a reasonable expectation
of privacy in the contents of the laptop because:
¨ While the teacher did not own the laptop, the
teachers at the school were granted exclusive possession of the laptops;
¨ The accused was given access to the computer on
weekends and during vacations for personal use;
¨ Access to the computer was protected by a
password;
¨ It was the norm for other teachers on the board
to store sensitive personal information on their work laptops as well; and
¨ The policy provisions dealing with the monitoring
or search of teacher laptops were found to be vague.
Although the teacher was
aware of the school board policies regarding the search of email communications
specifically, there were no clear policies that mentioned the monitoring or
policing of teachers using their laptops for personal use.
It is important to note
that while the court held that the teacher had a reasonable expectation of
privacy, the actions of the board in copying data and searching the laptop in
support of an investigation of a serious allegation of teacher misconduct did
not violate the teacher’s rights. The court stated, “…the school board had an
ongoing obligation to take steps to ensure a safe and secure learning
environment for its students and to protect the students’ privacy rights. The
search of the laptop and preservation of the evidence for an internal
discipline procedure was an obvious means to do so.” Further, the court held
that the principal’s decision to copy images onto a disc and seize the laptop
was implicitly authorized by the Education Act, as
part of the principal’s duty to ensure a safe school environment. While the
principal and school board’s actions were deemed appropriate by the Court, the
warrantless seizure of the laptop by the police was found to constitute a
violation of section 8 of the Charter. While it is beyond the scope of
this Bulletin to analyze the details of this part of the decision, the Court
did permit the disc with the screen shot and the images of the student to
remain as prosecution evidence.
E. CONCLUSION
Employers have the right to govern the
terms of the use of work computers by their employees. With the number of
employees that now require computers as part of their daily activities in the
workplace, the conflicts that could potentially arise will undoubtedly
continue. While decided in the criminal law context, R. v. Cole illustrates the importance of having a policy relating to personal use of work
computers. Such a policy will determine the extent to which an employee has any
expectations of privacy of materials stored on work computers. As with all
policies, it is important that they be clearly communicated to employees to
ensure adherence and provide a basis for discipline in the event of a breach. The
law changes over time, and may differ according to the jurisdiction where you
operate. Therefore, it is advisable to have any new policies reviewed by a
lawyer before you implement them.
