October 24, 2012 - The Supreme Court of Canada recently released a decision that significantly impacts the privacy rights of employees:  R. v. Cole 2012 SCC 53.

In the decision, the SCC determined that the police acted unconstitutionally in obtaining evidence from the employer without a warrant, however, in the circumstances of the case, the evidence should not be excluded at trial.  The case also includes some valuable lessons for employers regarding privacy in work-issued computers.

Synopsys of the facts and issues

Mr. Cole was a high school teacher.  He had a work-issued laptop and used it for incidental personal purposes.  The school board policy allowed for incidental personal use of information technology.  The policy specifically stated that e-mail remained private but was subject to access by administration under certain circumstances.  It also noted that “all data and messages generated on or handled by board equipment are considered to be the property of the [school board]”. 

While performing maintenance activities, a technician found a hidden folder containing nude photographs of a student.  The principal authorized the technician to copy the photographs onto a CD.  The principal seized the laptop, which was later handed over to police with the CD.  The police reviewed the content of the laptop and CD and created a mirror image of the hard drive for forensic purposes. 

Mr. Cole was charged with possession of child pornography and unauthorized use of a computer pursuant to the Criminal Code.  At trial, the judge excluded all of the computer material pursuant to sections 8 and 24(2) of the Charter.  Since there was no other evidence, the charges were dismissed.

The primary issues in this case focused on an individual’s constitutional rights against unreasonable search and seizure by the state, and whether certain evidence should be excluded in a criminal trial.  As such, the discussion regarding privacy rights was in this context, and not focused on the relationship between employers and employees in the workplace.  Nevertheless, employers can take some important direction from the Court’s comments.

Lessons for employers

The school board’s conduct in dealing with its teacher was not in question in this case.  The decision does not impede an employer’s right to conduct a proper investigation in reasonable circumstances and take appropriate action with respect to the employment relationship. 

For the purposes of maintaining a safe workplace, the employer had a duty to search and seize an employer issued laptop in circumstances where the principal believed on reasonable grounds that the hard drive contained compromising photographs of a student.  The employer acquired lawful possession of its laptop for its own administrative purposes.  In this regard, an employer’s responsibility to manage the workplace has not changed as a result of this decision.

Charter values, which include privacy, will be generally instructive for Courts and arbitrators in labour and employment cases.  With respect to the “expectation of privacy” the Court determined that ownership of the laptop by the school board, workplace policies and practices, as well as the technology in place at the school diminished the employee’s privacy interest in his computer.  Ownership is relevant but not the only factor.  The context, including the policies, practices, and customs of the workplace are relevant.  The Court described “operational realities” which may diminish the expectation of privacy employees may have.  The Court also considered the training given to the teachers.  The Court specifically said, however, it was leaving for another day the finer points of an employer’s right to monitor computers issued to employees.

Employers should have a policy that addresses computer use.  If that exists, consider whether the policies and practices are adequate, appropriate and closely aligned to the circumstances of the workplace.  In considering the “operational realities” that may affect an employee’s expectation of privacy, employers ought to remember that policies are only a part of the picture.  Written policies will create a framework for the relationship, however, a Court may look further at the context and the totality of the circumstances in practice.

The employer’s authority to search the laptop to maintain a safe environment did not automatically afford the police authority to search and seize.  Where an employer finds evidence of possible illegal activity, the employer may advise the police about its existence, however, an employer may appropriately ask the police for a warrant before turning over evidence.