Archive for the 'News' Category

I think R V. Cole, 2011 ONCA 218 will become the leading case on an employee’s expectation of privacy on a work-provided computer. This appeal was a partial victory to a Sudbury high school teacher charged with possession of child pornography. The Ontario Court of Appeal ruled that police violated his Charter rights when they searched his laptop without a warrant.

A search of Cole’s computer by the high school’s IT staff found sexually explicit photos of a Grade 10 student that he acquired from the student’s email account. The laptop was then turned over to the police and searched without a warrant. The proceeds of the police search were excluded while the IT technician’s search was proper as it was for the purposes of maintaining the school board’s network and the laptop.

Justice Karakatsanis wrote for the Ontario Court of Appeal which found the employee 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 school board had no clear and unambiguous policy to monitor, search, or police the teacher’s use of his laptop.

This seems consistent with the prevailing case law regarding the recognition of an employer’s right to govern the use of their systems through policy, but it also recognises the rising privacy expectations of employees in the personal use of an employer’s system.