Aug 8, 2014

Privacy and Workplace Computers

R. v. Cole, 2012 SCC 53, [2012] 3 SCR 34

Originally published on October 19, 2012 on the Alexander Holburn Beaudin + Lang LLP Information + Privacy Law Blog:

Author: Alexander Holburn Beaudin + Lang LLP

The Supreme Court of Canada has now released its decision in the case of R v. Cole, affirming that an employee in a workplace has a reasonable expectation of privacy about personal information contained on workplace computers. This expectation can be maintained even in the face of workplace policies and procedures, and despite the fact that the employer owns all relevant equipment and systems. The decision will have a wide-reaching effect on employment law and privacy law.

One of the specific issues on appeal in this case was whether the conduct of the police in searching and seizing the workplace computer containing the personal information without a warrant was a breach the employee’s rights under section 8 of the Charter. The Court found that the search and seizure did violate the employee’s Charter rights, but that the admission of the evidence gained in the search and seizure would not bring the administration of justice into disrepute and therefore the evidence should not be excluded. In the end result, a new trial was ordered for the accused individual.

The court did not specifically deal with the scope of the employer’s rights to access the personal information on the workplace computer, as in this case the accused had conceded that in the circumstances the employer had such a right. At paragraph 60 of the decision, the court states: “I leave for another day the finer points of an employer’s right to monitor computers issued to employees.” Therefore, this aspect of privacy law will continue to evolve.

The headnote summary of the majority decision is reproduced below.

”Computers that are reasonably used for personal purposes — whether found in the workplace or the home — contain information that is meaningful, intimate, and touching on the user’s biographical core. Canadians may therefore reasonably expect privacy in the information contained on these computers, at least where personal use is permitted or reasonably expected. Ownership of property is a relevant consideration, but is not determinative. Workplace policies are also not determinative of a person’s reasonable expectation of privacy. Whatever the policies state, one must consider the totality of the circumstances in order to determine whether privacy is a reasonable expectation in the particular situation. While workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely. A reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter. Accordingly, it is subject to state intrusion only under the authority of a reasonable law.

The police in this case infringed the accused’s rights under s. 8 of the Charter. The accused’s personal use of his work-issued laptop generated information that is meaningful, intimate, and organically connected to his biographical core. Pulling in the other direction are the ownership of the laptop by the school board, the workplace policies and practices, and the technology in place at the school. These considerations diminished the accused’s privacy interest in his laptop, at least in comparison to a personal computer, but they did not eliminate it entirely. On balance, the totality of the circumstances support the objective reasonableness of the accused’s subjective expectation of privacy. While the principal had a statutory duty to maintain a safe school environment, and, by necessary implication, a reasonable power to seize and search a school-board issued laptop, the lawful authority of the accused’s employer to seize and search the laptop did not furnish the police with the same power. Furthermore, a third party cannot validly consent to a search or otherwise waive a constitutional protection on behalf of another. The school board was legally entitled to inform the police of its discovery of contraband on the laptop. This would doubtless have permitted the police to obtain a warrant to search the computer for the contraband. But receipt of the computer from the school board did not afford the police warrantless access to the personal information contained within it. This information remained subject, at all relevant times, to the accused’s reasonable and subsisting expectation of privacy.

Unconstitutionally obtained evidence should be excluded under s. 24(2) if, considering all of the circumstances, its admission would bring the administration of justice into disrepute. The conduct of the police officer in this case was not an egregious breach of the Charter. While the police officer did attach great importance to the school board’s ownership of the laptop, he did not do so to the exclusion of other considerations. The officer sincerely, though erroneously, considered the accused’s Charter interests. Further, the officer had reasonable and probable grounds to obtain a warrant. Had he complied with the applicable constitutional requirements, the evidence would necessarily have been discovered. Finally, the evidence is highly reliable and probative physical evidence. The exclusion of the material would have a marked negative impact on the truth-seeking function of the criminal trial process. The admission of the evidence would not bring the administration of justice into disrepute and therefore the evidence should not be excluded.

Generally speaking, the decision to exclude evidence under s. 24(2) should be final. In very limited circumstances however, a material change of circumstances may justify a trial judge to revisit an exclusionary order. In this case, the Court of Appeal invited the trial judge to re-assess the admissibility of the temporary Internet files disc if the evidence becomes important to the truth-seeking function as the trial unfolds. Unconstitutionally obtained evidence, once excluded, will not become admissible simply because the Crown cannot otherwise satisfy its burden to prove the guilt of the accused beyond a reasonable doubt.”