Supreme Court of Canada to Hear Employee Laptop Privacy Case

Do employees have a reasonable expectation in employer-issued computers used for work purposes?  The Supreme Court of Canada has agreed to weigh in on this issue - having recently granted leave to appeal the decision of the Ontario Court of Appeal in R. v. Cole.

Why is this Case Important?

The Ontario Court of Appeal decision is notable from a privacy perspective, as the Court determined that, under specific circumstances, employees have a reasonable expectation of privacy in the contents of work computers. 

Cole was a high-school teacher, charged with the possession of child pornography and unauthorized use of a computer in violation of the Criminal Code. He was provided with a school-issued laptop for work-related purposes. In response to unusual network activity, a computer technician at the school gained access to the contents of the computer and the discovered nude photographs of an underage female. The computer and images were subsequently turned over to police for further investigation.

In a somewhat surprising decision, the Court of Appeal determined that the high-school teacher had a reasonable expectation of privacy in the contents of his laptop based on the following factors:

  • he had exclusive possession of the laptop
  • he had permission to use it for personal use
  • he had permission to take it home on evenings, weekends and summer vacation
  • there was no evidence the board actively monitored teachers’ use of laptops
  • the board had no clear and unambiguous policy to monitor, search or police the teacher’s use of his laptop

To read a more detailed analysis of the Ontario Court of Appeal decision and its implications for employers, read our article:   R. v. Cole: The Court of Appeal for Ontario Weighs in on Workplace Privacy Rights.

Who Will be Affected by this Decision?

It is important to note that this case arose in the context of a criminal proceeding and a Charter claim.  Accordingly, a Supreme Court ruling on this issue may not have direct application to private-sector employers, who are not subject to a Charter analysis regarding the search of employees’ computers.

It is likely however that courts, arbitrators and administrative tribunals will consider the Supreme Court of Canada's insights and reasoning when addressing issues of privacy in the workplace.

charter Computer Criminal Code laptop privacy workplace

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