This post was also written by Frederick Lah.
Last year, we blogged about an Ontario Court of Appeals case holding that a teacher had a reasonable expectation of privacy in his work computer.
In that case, a high school teacher, Richard Cole, was charged with possession of child pornography and the unauthorized use of a computer. Cole was issued a laptop by the school for his personal use. In addition to keeping some personal files on the laptop, Cole downloaded nude photos of a high school student. When a technician found the photos while performing his duties, he copied the photos onto a disc and showed them to the school principal. The principal seized the laptop and handed both the laptop and disc over to the police. The police then took a mirror image of the laptop’s hard drive without a warrant. The Court of Appeals for Ontario held that Cole had a reasonable expectation of privacy in the laptop, and that the mirror image of the hard drive was wrongfully obtained. The court held that the disc containing the photos was legally obtained because the technician had a right to access Cole’s laptop.
This past Monday, the Supreme Court of Canada reinforced the appellate court’s position that Cole had a privacy right over the personal use of his workplace laptop, and that he should not have been subjected to a warrantless search. The issue as to whether the disc was wrongfully obtained was not in dispute. The court reasoned:
“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 [ ] 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 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.”
It is important to note, though, that while the court held that a privacy right existed in Cole’s work-issued laptop, the court still found the copy of the hard drive to be admissible under its application of Canadian evidence law: “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.”
As we noted in our last post and as is clear from the court’s language, determinations as to whether a reasonable expectation of privacy exists will continue to be fact-specific. The court’s holding here clearly does not provide employees with an unqualified expectation of privacy in their work computers. Who actually owns the computer, and workplace policies and procedures should be taken into consideration. Whether or not such an expectation exists will continue to depend on the totality of the circumstances.