Mr. Cole was a high school teacher with an employer owned and issued laptop computer. He also used it for incidental personal purposes, which was permitted by the employer’s policies. The employer found nude and partially nude photos of an underage female student on the computer; it copied the photos to a CD and copied the temporary files to a second disk, then turned the computer and both disks over to the police. The police reviewed the computer and made a mirror image of its hard drive without obtaining a search warrant, and charged Mr. Cole criminally.
Click here to read McInnes Cooper’s May 6, 2011 Legal Update “Ontario Court of Appeal Finds Reasonable Expectation of Privacy in Work Computer”.
On October 19, 2012 the SCC decided that:
People have a reasonable expectation of privacy in work computers where personal use is permitted or reasonably expected;
Ownership of the computer and workplace policies are relevant, but not determinative, of a person’s reasonable expectation of privacy;
One must consider the totality of the circumstances to determine whether privacy is a reasonable expectation in the particular situation; and
Workplace policies and practices may diminish a person’s reasonable expectation of privacy in a work computer, but does not eliminate it; the Charter right to be free from unreasonable search and seizure protects even a diminished reasonable expectation of privacy.
The SCC decided Mr. Cole did have an expectation of privacy, though a diminished one, in his work computer. The employer principal did have a statutory duty to maintain a safe school environment, and thus a reasonable power to seize and search the work computer. However, the police did not have this same authority and the employer could not consent to a search or waive Mr. Cole’s Charter protection on his behalf. The warrantless search breached Mr. Cole’s Charter right. However, in the circumstances the admission of the computer evidence obtained by the warrantless search would not bring the administration of justice into disrepute and thus the Charter did not require it to be excluded. Since the trial judge had excluded both disks and the mirror image, the SCC ordered a new trial.
Click here to read the SCC’s decision in R. v. Cole.
Watch for our full analysis of this case to be published soon.