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Home > Our Insights > Legal Alert: SCC Finds Limited Reasonable Expectation of Privacy In Work Computer But Evidence Still Admissible
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Legal Alert: SCC Finds Limited Reasonable Expectation of Privacy In Work Computer But Evidence Still Admissible

Published:

October 22, 2012

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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.

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    On January 1, 2022, the Atlantic Immigration Pilot Program became the permanent Atlantic Immigration Program (AIP). Learn more at From Pilot to…

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    Publication
  • 12 Key Do’s & Don’ts of Hiring & Firing

    Jan 31, 2017

    We updated this publication on March 1, 2023. The hiring process and the termination process are equally important stages of the employment…

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    Publication
  • Confidentiality Risks of Doing Business With the Public Sector Just Got Riskier: Completed NS Access to Information Requests Go Online

    Jan 25, 2017

    Doing business with the public sector creates an often overlooked – but very real – risk that the confidential information a business…

    Read More
    Publication
  • 5 Employer FAQs About Religious Accommodation @ Work

    Dec 13, 2016

    Employers’ legal duty to accommodate employees seems to most frequently come up in the context of employees with disabilities. But that duty…

    Read More
    Publication
  • Supreme Court of Canada Says Privilege Wins Again – Twice in Lizotte v. Aviva Insurance Company of Canada & Alberta (Information and Privacy Commissioner) v. University of Calgary

    Nov 28, 2016

    On November 25, 2016, the Supreme Court of Canada decided privilege wins again - twice. In two separate decisions - Lizotte v. Aviva Insurance…

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    Publication
  • Supreme Court of Canada Warns Judgment Creditors: Implied Consent is Enough to Disclose Discharge Statement in Royal Bank of Canada v. Trang

    Nov 22, 2016

    On November 17, 2016 the Supreme Court of Canada decided a mortgagee has the mortgagor’s implied consent to disclose its discharge statement…

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    Publication
  • Businessperson or “Business Visitor”: Canada’s Business Visitor Visa Rules

    Nov 22, 2016

    Canada’s most important trading relationship might undergo some change with the results of the 2016 U.S. election. Facilitating cross-border…

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    Publication
  • The 5 Key Elements of an Attendance Management Program (AMP)

    Nov 15, 2016

    The employment contract is an exchange of labour for wages and other benefits, so employers are entitled to expect regular ongoing attendance…

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    Publication
  • 3 Key Employment Law Steps to Take Now to Help You Sell Later

    Oct 19, 2016

    Business owners wear many hats – including employer. Your employees may be your business’s greatest asset, but they could also be your…

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    Publication
  • Uber Angst: Employees & Independent Contractors in the Sharing Economy

    Sep 29, 2016

    Whether someone is an employee or an independent contractor has long caused employers a degree of angst. And the recent emergence of a new…

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    Publication
  • No Union? No Problem: Supreme Court of Canada Decides Canada Labour Code Bars Dismissal of Non-Unionized Employees Without Cause in Joseph Wilson v. Atomic Energy of Canada

    Jul 15, 2016

    On July 14, 2016, the Supreme Court of Canada decided that the “Unjust Dismissal” sections of the Canada Labour Code ensure that…

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    Publication
  • NS Dives into Pooled Registered Pension Plans (PRPP)

    Jun 30, 2016

    As of June 25, 2016, provincially regulated workers and employers in Nova Scotia, Quebec, BC and Saskatchewan can participate in Pooled…

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    Publication
  • Label Delicate: Workplace Dress Codes Test & Tips

    Jun 29, 2016

    Employers are entitled to mandate dress codes in the workplace, and even to discipline employees who refuse to comply. But a workplace dress…

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    Publication
  • The Legal Defence of Due Diligence: Top 5 FAQs

    May 2, 2016

    “Due diligence” is a legal defence to many charges under occupational health and safety (OHS) laws. Here are five of the most…

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    Publication
  • The Nuances of Labour Marketing Impact Assessments (LMIA): 2 Key Exemptions to Minimum Advertising Requirements

    Mar 29, 2016

    Applying for and obtaining a Labour Market Impact Assessment (LMIA) is a critical step in hiring a temporary foreign worker(s). Employers…

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    Publication
  • Doing Business With the Public Sector: Key Confidentiality Risks & 3 Risk Management Strategies

    Mar 24, 2016

    When a business responds to a public sector Request for Proposal or Expression of Interest (both of which we’ll refer to as an RFP for these…

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    Publication
  • Construction Project Manager Sentenced to 3½ Years for Workplace Accident in R. v. Vadim Kazenelson (aka “Metron”)

    Mar 9, 2016

    In what appears to be the first case of the conviction of a front line supervisor under section 217.1 of the Criminal Code and sentencing to a…

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    Publication
  • 3 Tips to Manage Employee Tardiness Due to Adverse Weather Conditions

    Feb 23, 2016

    Employee tardiness is a significant problem for employers - and bad weather is one of the top three reasons that employees give for it according…

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    Publication
  • The Top 12 Employment Contract Terms

    Feb 1, 2016

    This publication has been updated as at November 15, 2022. A well drafted and properly implemented written employment contract can be…

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    Publication
  • Doe 464533 v. D.: Business Implications of the Civil Privacy Claim for “Public Disclosure of Private Facts”

    Jan 27, 2016

    On January 21, 2016, the Ontario Superior Court of Justice dramatically expanded the scope of legal privacy protection – and the liability…

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    Publication
  • Ontario Court Provides Guidelines to Balance Privacy Rights & “Tower Dumps” in R v. Rogers Communications

    Jan 18, 2016

    On January 14, 2016, the Ontario Superior Court decided that Canadians have a clear privacy interest in their records of their cellular…

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    Publication
  • An Ounce of Prevention is Worth a Pound of Response: The W-5’s of Managing Conflict & Preventing Harassment, Bullying & Violence @ Work

    Dec 7, 2015

    Violence has become an unfortunate reality in current society, and the workplace is not immune. With more people spending more time at work,…

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    Publication
  • Canada’s Anti-Spam Legislation (CASL): The Top 3 Lessons Businesses Can Learn from Year 1

    Sep 29, 2015

    The anti-spam sections of Canada’s Anti-spam Legislation (CASL) took effect on July 1, 2014 amidst hype, controversy and dire warnings. Were…

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    Publication
  • 10 of the Top Employers’ Attendance Management Problems

    Aug 13, 2015

    The employment contract, at its core, is an exchange of work for compensation. So at a very basic level, employers are entitled to expect…

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    Publication
  • A Glimpse Into The Future of Privacy Law: Medical Marijuana Privacy Breach Class Action Lawsuit Can Go Ahead in John Doe and Suzie Jones v. Her Majesty the Queen

    Jul 29, 2015

    On July 27, 2015, the Federal Court of Canada decided a lawsuit by medical marijuana program participants against the Federal Government…

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    Publication
  • 3 Reasons for Directors, Officers and Supervisors To Take Occupational Health and Safety Personally

    Jun 25, 2015

    Most people know that a company itself has OHS obligations, and that it risks corporate liability if it violates those obligations. However, not…

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    Publication
  • The New NS Missing Persons Act: 5 Privacy Implications for Businesses, Organizations & Public Bodies

    Jun 2, 2015

    Effective April 22, 2015 the NS Government enacted the NS Missing Persons Act, lowering the threshold for police to get an order to access…

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    Publication
  • SCC Gives Municipalities (& Other Government Authorities) 3 Reasons Not to Say A Little Prayer in Mouvement laïque québécois v. Saguenay (City)

    Apr 15, 2015

    On April 15, 2015 the Supreme Court of Canada decided the City of Saguenay’s recitation of a religious - though non-denominational – prayer…

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    Publication
  • 5 FAQs About Workplace Sex Discrimination

    Mar 31, 2015

    This publication has been updated as at June 24, 2021. Women make up close to half of the employed workforce: in 2019, Canadian women 15…

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    Publication
  • Wait a Minute Mr. Postman … 3 Lessons Health Canada’s Privacy Breach Delivers to the Private Sector

    Mar 25, 2015

    On March 3, 2015 Canada’s Privacy Commissioner determined that Health Canada breached privacy laws by mailing letters to over 40,000 Marihuana…

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    Publication
  • No Messing Around – $1.1M First Penalty for Canada’s Anti-Spam Legislation (CASL) Violations by Compu-Finder

    Mar 6, 2015

    On March 5, 2015, the Canadian Radio and Television Commission (the CRTC, the main agency charged with administering and enforcing most of CASL)…

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    Publication
  • 5 Hot Tips to Help Employers Handle Office Romances

    Feb 13, 2015

    This publication has been updated as at January 26, 2022. With people spending so many of their waking hours at or connected to work these…

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    Publication
  • Charter Protects the Right to Strike

    Feb 2, 2015

    On January 30, 2015 the Supreme Court of Canada decided that the Canadian Charter of Rights and Freedom’s protection for freedom of…

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    Publication
  • Bad Faith & Unfair Dealing in Employee Dismissal: 7 Lessons in 7 Years

    Jan 30, 2015

    In December 2014, the NL Supreme Court ordered an employer to pay its former employee $30,000 in moral damages to compensate him for the mental…

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    Publication
  • Privacy in Basic Cell Phones: SCC Continues Trend of Privacy Protection in R. v. Fearon

    Dec 11, 2014

    On December 11, 2014 the Supreme Court of Canada continued its trend to recognize privacy rights – and develop the law to protect them –…

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    Publication
  • Canada’s Anti-Spam Legislation (CASL) Software Installation Sections: 10 FAQs

    Dec 11, 2014

    On January 15, 2015, the software provisions of Canada’s Anti-Spam Legislation (CASL) will take effect.  CASL’s anti-spam sections, touted…

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    Publication
  • 5 Tips to Manage Employer (Social) Host Liability

    Dec 5, 2014

    This article has been updated as of December 11, 2020. Employers host numerous events throughout the year – summer and holiday office…

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    Publication
  • Complying with Canada’s Anti-Spam Legislation (CASL): A blueprint for the construction industry

    Dec 1, 2014

    The construction industry - project owners, contractors, subcontractors and trades - might be relaxing, ignoring the hype around Canada’s…

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    Publication
  • Egg Films Epilogue: 5 Key Implications of NS Union Certification Based on “Industry” Dependence

    Nov 27, 2014

    Recently, the NS Court of Appeal confirmed that a union can be certified as the bargaining agent of employees based merely on their dependence…

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    Publication
  • Complying With Canada’s Anti-Spam Legislation (CASL): Protecting Directors & Officers from Personal Liability

    Oct 14, 2014

    CASL’s anti-spam sections came into force on July 1, 2014. Every organization that CASL affects should now be complying with it – and their…

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    Publication
  • 5 New Obligations on NB Employers Effective September 1, 2014 in NB Employment Standards Act

    Sep 30, 2014

    Effective September 1, 2014 the NB government implemented five important changes to the NB Employment Standards Act – the minimum standards…

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    Publication
  • Complying With Canada’s Anti-Spam Law (CASL) – Foreign Organizations Doing Business in Canada Need to Pay Attention

    Aug 1, 2014

    Most Canadians have heard about Canada’s Anti-Spam Legislation (CASL): we’ve been bombarded with “CASL Compliant” emails asking us to…

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    Publication
  • Canada’s Temporary Foreign Worker Program Overhaul

    Jul 9, 2014

    On June 20, 2014 the Federal Government announced a major overhaul of Canada’s Temporary Foreign Worker Program. With stringent enforcement…

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    Publication
  • SCC Protects Internet Users’ Expectation of Privacy In Online Activities in R. v. Spencer

    Jun 16, 2014

    On June 13, 2014 the Supreme Court of Canada decided that Canadians have a reasonable expectation of privacy in their online activities, and…

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    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL) – The Last Minute Guide to Preparing For CASL

    Jun 12, 2014

    The countdown to CASL is almost over: there are only 13 business days until the anti-spam provisions of CASL – and most of the penalties for…

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    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL) –10 Steps to Prepare for CASL

    May 8, 2014

    On July 1, 2014 – less than two months from now - the anti-spam sections of Canada’s Anti-Spam Legislation (CASL) take effect. Individuals…

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    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL) – Does CASL Make You A “Spammer”?

    Apr 15, 2014

    The countdown to CASL is on: on July 1, 2014, the anti-spam sections of Canada’s Anti-Spam Legislation (“CASL”) take effect. Individuals…

    Read More
    Publication
  • Legal Update: Feds Crack Down On Employer Abuse Of Temporary Foreign Worker Program

    Apr 3, 2014

    On March 28, 2014 the Federal Government tabled Bill C-31 to implement the 2014 Federal Budget – including broad authority to impose cash…

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    Publication
  • Cloud Computing: A Privacy FAQ

    Mar 19, 2014

    As organizations turn to cloud computing services, ensuring compliance with legislation and reducing privacy risks is key. In Canada, there is…

    Read More
    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL): 10 Reasons Why You Should Care About The Upcoming CASL Right Now

    Feb 28, 2014

    On July 1, 2014, the anti-spam sections of Canada’s Anti-Spam Legislation (aka “CASL”) will take effect. CASL is: Broad. It applies…

    Read More
    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL) – What You Need to Know Now

    Feb 28, 2014

    On July 1, 2014, the anti-spam sections of Canada’s Anti-Spam Legislation (aka “CASL”) take effect. CASL will apply to just about every…

    Read More
    Publication
  • Legal Update: More Changes to Federal Temporary Foreign Worker Program

    Jan 21, 2014

    On December 31, 2013, amendments to the Immigration and Refugee Protection Regulations and new Ministerial Instructions changing the Federal…

    Read More
    Publication
  • Privacy in Computer Contents: Supreme Court of Canada Picks Up Where It Left Off in R. v. Vu

    Nov 8, 2013

    On November 7, 2013, the SCC decided police require specific authorization in a search warrant to search the data in a computer because of the…

    Read More
    Publication
  • Privacy Trumps Safety: SCC Strikes Down Mandatory Random Alcohol Testing Policy

    Jul 2, 2013

    On June 14, 2013, the Supreme Court of Canada’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp…

    Read More
    Publication
  • Legal Alert: Federal Temporary Foreign Worker Program Changes

    Apr 30, 2013

    Note: Effective December 31, 2013, the Federal Government made additional changes to the Federal Temporary Foreign Worker Program. Click here to…

    Read More
    Publication
  • Students with Learning Disabilities Have a Right to Education Comparable to that of the General Student Population in Moore v. British Columbia (Education)

    Jan 8, 2013

    On November 19, 2012, the Supreme Court of Canada (SCC) unanimously ruled a B.C. public school system’s failure to provide adequate and…

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    Publication
  • Supreme Court of Canada Confirms Employees May Have a Limited Reasonable Expectation of Privacy In Work Computer in R. v. Cole

    Nov 28, 2012

    On October 19, 2012 the Supreme Court of Canada (SCC) decided that a teacher criminally charged with possession of child pornography and…

    Read More
    Publication
  • Court Confirms Reviewing Courts Should Give Early Due Deference to Administrative Decision-Makers

    Jul 10, 2012

    On March 16, 2012, the Supreme Court of Canada (“SCC”) confirmed the decision of the N.S. Court of Appeal, reinstating the N.S. Human Rights…

    Read More
    Publication
  • “Canada Day” Or “July 1st”: Which Is The “Holiday” For Employees?

    Jun 14, 2012

    As any Canadian knows, July 1st – Canada Day – is the first long weekend of the summer; or is it?  This year, July 1st falls on a Sunday. …

    Read More
    Publication
  • 10 Tips to Deal with Employee Discipline for Social Media Use

    Mar 1, 2012

    Social media represents a profound cultural shift and employers must adapt if they want to avoid unnecessarily – and potentially costly –…

    Read More
    Publication
  • Alert: Significant Changes to NS Human Rights Complaint-Handling Procedure Effective January 1, 2012

    Jan 5, 2012

    Effective January 1, 2012, NS’s Human Rights Commission will receive, investigate and handle complaints under NS’s Human Rights Act under a…

    Read More
    Publication
  • Multiple Extensions of Termination Date Nullify Termination Notice

    Dec 19, 2011

    In a decision with application to Atlantic Canada, the Ontario Court of Appeal found that an employer’s multiple extensions of a terminated…

    Read More
    Publication
  • NB Court of Appeal Upholds Mandatory Random Alcohol Testing Policy

    Aug 6, 2011

    Note: On June 14, 2013 the Supreme Court of Canada issued its decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v.…

    Read More
    Publication
  • Ontario Court of Appeal Finds Reasonable Expectation of Privacy in Work Computer

    May 6, 2011

    In March 2011, the Ontario Court of Appeal found that an employee had a limited expectation of privacy in the contents of a work computer. The…

    Read More
    Publication
  • Legal Update: Cloud Computing and Privacy FAQ

    Apr 7, 2011

    Note: Click here to read an updated version of this Legal Update in Cloud Computing: A Privacy FAQ as seen in as seen in CCCA Magazine, Spring…

    Read More
    Publication
  • Changes to Federal Foreign Worker Regulations Effective April 1, 2011: A Serious Issue for Employers

    Mar 6, 2011

    In the midst of a sea of change, the Federal Government has enacted Regulatory changes significantly impacting employers who hire foreign…

    Read More
    Publication

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