The Supreme Court of Canada has granted leave to appeal the Ontario Court of Appeal’s decision in R. v. Cole, 2011 ONCA 218. Mr. Cole, a teacher, was charged with possession of child pornography and unauthorized use of a computer after a computer technician accessed his laptop to perform a virus scan and verify the system’s integrity. In doing so, the technician found a hidden folder on the hard drive containing nude sexually explicit photos of a grade 10 student. The technician reported this to the principal who, in turn, reported it to the school board. The school board that employed Mr. Cole turned over the laptop and two discs of the images to the police who searched them without a warrant. Mr. Cole challenged the charges against him on the basis that the police had infringed his Charter right against unreasonable search and seizure because he had a reasonable expectation of privacy in the contents of the laptop.

Other critical background facts include :

  • Mr. Cole was a member of the IT committee and aware that computer technicians could access laptops connected to the system to maintain the integrity of the school’s information network;
  • the school board owned the laptop, but permitted teachers to use them for personal use and to take them home during weekends and vacations; and
  • the policy and procedures manual applicable to Mr. Cole imposed some limits on personal use, but did not provide for any searches and only addressed privacy in connection with email.

The Court of Appeal had determined that the computer technician and school board’s search of the laptop did not breach any Charter rights. The technician acted reasonably within the scope of his function and Mr. Cole had no reasonable expectation of privacy with respect to his actions. The principal and school board acted appropriately given their obligations under the Education Act. The police search, however, was found to be unreasonable resulting in the exclusion of the evidence gained from the laptop and two discs.

Of concern for employers is the finding that Mr. Cole had a reasonable expectation of privacy in the information stored on the hard drive of his laptop, subject to the limited right of access by the school board’s computer technicians to maintain the integrity of the system. The decision was a good reminder that explicit policies putting employees on notice they should have no expectation of privacy in material kept on work systems are essential.

The Supreme Court, as is its practice, did not issue reasons in granting leave to appeal. The Canadian Association of Counsel to Employers (CACE) has intervened seeking that the Supreme Court articulate a broad and clear right of employer access to work computers as part of their integrated information system intended to support work.

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