The charter issue
Supreme Court of Canada decision
Implications for employers – little cause for alarm
On October 19 2012 the Supreme Court of Canada released its eagerly awaited decision in R v Cole (2012 SCC 53). In this criminal case, the accused (a high-school teacher) argued that his right under Section 8 of the Canadian Charter of Rights and Freedoms to be free from unreasonable search and seizure was violated when police reviewed the contents of his work-issued laptop without first obtaining a search warrant. As a result, he argued that the evidence obtained from his laptop should be excluded from consideration in his criminal case.
In its decision, the Supreme Court held that where employees are permitted or reasonably expected to make personal use of work-issued computers or devices, they may have a reasonable - though diminished - expectation of privacy in the personal information that they have stored on those devices. This reasonable expectation of privacy is protected by the charter, such that any inspection and taking of an employee's work-issued device by the state will constitute a 'search and seizure', requiring an assessment as to whether the search and seizure was reasonable in accordance with charter principles.
R v Cole received a significant amount of attention in both the mainstream and legal media as it navigated its way through the courts up to the Supreme Court of Canada. Concern was expressed along the way that a decision could create new law with respect to the privacy rights of employees in relation to their employers – for example, a pronouncement on the scope of an employer's right to monitor the computers and other devices issued to its employees. However, these concerns have been alleviated as the Supreme Court confirmed in R v Cole that the privacy rights recognised in the decision apply only to the rights of employees in relation to the state and the right of an individual to be free from unreasonable search and seizure. The court specifically stated that it would leave for another day "the finer points" of an employer's right to monitor computers and devices issued to employees.
Richard Cole was an Ontario high-school teacher. In addition to his regular teaching duties, he was responsible for policing student use of their networked laptops. To this end, he was supplied with a laptop owned by the school board and was given domain administration rights on the school's network. This allowed him to access the hard drives of students' laptops. Cole was also permitted to use his laptop for incidental personal purposes, which he did. He often browsed the Internet and stored personal information on the laptop's hard drive.
Cole's difficulties began when a school technician, performing maintenance activities on the school's network, found a hidden folder on Cole's laptop that contained nude photographs of a high-school student. The technician copied the photographs to a compact disc (CD) and reported his findings to the school principal. The principal seized the laptop and school board technicians copied its temporary internet files onto a second CD. The laptop and both CDs were handed over to the police, who reviewed all the information without first obtaining a search warrant. Cole was then charged with possession of child pornography and unauthorised use of a computer contrary to Sections 163.1(4) and 342.1(1) of the Criminal Code,(1) and was prosecuted by way of summary conviction.
The charter issue
At the outset of his criminal case, Cole brought a pre-trial motion challenging the admissibility of the evidence obtained by the police from his laptop. He argued that his right to be free from unreasonable search and seizure, enshrined in Section 8 of the charter, had been infringed when the police reviewed the evidence from his laptop without having first obtained a search warrant, and therefore that the evidence seized should be excluded pursuant to Section 24(2) of the charter. A threshold issue thus became whether Cole had a reasonable expectation of privacy in the contents of his work-issued laptop such that he was entitled to the protection of the charter.
The trial judge found that Cole had a reasonable expectation of privacy in his work-issued laptop and that the police had breached his rights under Section 8 of the charter by searching and seizing the laptop without first obtaining a search warrant. The trial judge excluded all of the computer evidence obtained as a result of the search, on the basis that the admission of the evidence would bring the administration of justice into disrepute. As the crown offered no further evidence, the charges against Cole were dismissed.
On appeal, the summary conviction appeal court reversed the initial decision and admitted the computer evidence. It found that Cole did not have a reasonable expectation of privacy in his work-issued laptop and therefore that there had been no breach of his charter rights.
On further appeal to the Ontario Court of Appeal, the decision of the summary conviction appeal court was set aside. The court found that Cole had a reasonable expectation of privacy in his work-issued laptop such that the warrantless search and seizure of the laptop by the police had breached Cole's rights under Section 8 of the charter. It excluded most of the evidence seized and sent the matter back for a new trial.
Supreme Court of Canada decision
The Supreme Court confirmed that in order to determine whether Cole had a reasonable expectation of privacy in his work-issued laptop, the court was required to apply the following four lines of inquiry:
- examination of the subject matter of the alleged search;
- whether the claimant had a direct interest in the subject matter;
- whether the claimant had a subjective expectation of privacy in the subject matter; and
- whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.(2)
After considering these lines of inquiry, the court concluded that the subject matter of the police search was the informational content of the laptop's hard drive and internet files. The court further commented that Cole's direct interest and subjective expectation of privacy in this informational content could be inferred from his use of the laptop to browse the Internet and to store personal information on the hard drive. Thus, the remaining question was whether Cole's subjective expectation of privacy was objectively reasonable.
In order to answer this question, the court first considered the nature of the information in issue and stated that the closer that information lies to the biographical core of personal information, the more likely it is that there will be a reasonable expectation of privacy in relation to that information. Here, Cole's computer was used to browse the Internet, which has been recognised to reveal a person's specific interests, likes and propensities, which are all recorded and stored in the browsing history and cache files. As a result, the court held that this highly revealing and meaningful information about Cole's personal life went to the heart of the "biographical core" of personal information protected by Section 8 of the charter. This weighed in favour of a reasonable expectation of privacy.
The court then turned to examine ownership issues and operational realities. In this case, Cole's employer, the school board, had a patchwork of policies, practices and customs – all of which factored into the court's analysis. In terms of ownership, the court noted that the school board had a policy stating that it owned not only the hardware (ie, the laptop itself) but also the data stored on it – a fact which weighed against a reasonable expectation of privacy. In terms of the operational realities, the court noted that this factor weighed both for and against a reasonable expectation of privacy – for, because written policy and school board practice was to permit Cole to use his work-issued laptop for personal purposes, and against because school board policies and technological reality deprived Cole of exclusive control over, and access to, the personal information that he chose to record on his laptop. That is, the contents of his hard drive were available to all other users and technicians with domain administration rights.
After considering the "totality of the circumstances", the court concluded that although Cole's privacy interest in his laptop was diminished by ownership issues, workplace policies and various operational realities, these factors did not eliminate his otherwise objectively reasonable expectation of privacy in the contents of his work-issued laptop. The court further concluded that the examination of the laptop by the police, without a warrant, violated Cole's rights under Section 8 of the charter. Despite these conclusions, however, the court declined to exclude the evidence obtained from the police search on the basis that it was "highly reliable and probative physical evidence", and that its admission would not bring the administration of justice into disrepute. The court thus set aside the exclusionary order of the Ontario Court of Appeal and ordered a new trial for Cole.
While the Supreme Court has confirmed in R v Cole that employees may have a reasonable expectation of privacy in the personal information stored on their work-issued devices, particularly where personal use of those devices is permitted or reasonably expected, it is important to reiterate that this reasonable expectation of privacy arises in relation to an individual's charter-protected right to be free from unreasonable search and seizure by the state. As a result, while the decision will no doubt be of great interest to governmental authorities, the police and public sector employers who are subject to the charter, it is of limited practical relevance to private sector employers.
That said, the decision in R v Cole does provide insight into how the court will approach claims of individual privacy rights in an era in which an ever-increasing amount of personal information is created and stored in electronic form – often on portable devices such as laptops and smartphones that move easily and blur the lines between home and work, the personal and professional. Although in this case, the court specifically declined to address the issue of an employer's right to monitor the computers and devices that it issues to its employees, there will surely be a time in the not-too-distant future when the court will be called on to address this issue.
Taking guidance from the court's decision in R v Cole, employers would be well advised to implement workplace policies that govern employees' use of the employer's technology. Such policies should:
- address ownership issues in the technology and any data stored on the technology;
- outline the permitted use of the technology (including any permitted personal use), as well as a list of prohibited conduct in relation to the technology;
- confirm the employer's right to access and monitor the technology and the reasons for which the employer may do so, such that an employee should not have an expectation of privacy when using the technology; and
- state that any use of the technology in contravention of the policy may result in disciplinary action up to and including termination of employment, and that any possible criminal use of the employer's technology will be reported to the appropriate authorities.
As with all workplace policies, employers should ensure that any policy governing employee use of the employer's technology is provided to employees for review at the time of hiring, and that the employee signs off on the policy, agreeing that he or she has read, understood and will abide by its contents. Similarly, it is critical that any such policy be well understood by those within the organisation who will be responsible for enforcing it, and that the policy is, in fact, consistently enforced. Lastly, employers must remember to review and update the policy as necessary in order to ensure that the policy remains compliant with any legal requirements, and that it takes into account any changes in technology. Of course, any updates must also be clearly communicated to employees.
While the above measures may not preclude a court from finding, in a future case, that employees have some measure of privacy rights in relation to their employer in the information that they store on a work-issued computer or device, employers which adopt these measures will be in a stronger position to defend against any such claims and argue against employees' reasonable expectation of privacy.
For further information on this topic please contact Christina Hall or Andrew Carricato at Heenan Blaikie LLP by telephone (+1 416 360 6336), fax (+1 416 360 8425) or email (email@example.com or firstname.lastname@example.org).
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