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Ontario Court of Appeal Rules Personal Files on Work Computer Private
You may have a right to privacy in the files stored on a computer that you do not own. That was the ruling of the Ontario Court of Appeal in R. v. Cole, which was handed down on March 22, 2011. In a unanimous decision, the three judge panel held that police were not entitled to search a laptop used by Sudbury high school teacher Richard Cole without a warrant. This is despite the fact that the Rainbow District School Board – the legal owner of the laptop – had turned over the evidence to the local cyber-crime unit after stumbling upon indecent images of a Grade 10 girl on the hard drive. The decision helps to underscore the important difference between ownership and privacy interests in Canadian law.
In June, 2006, a technician at a secondary school in north-eastern Ontario noticed a hidden folder on a laptop used by Cole. He discovered sexually explicit images of a female student – images that Cole had downloaded from another student’s email account using special domain administration rights. The technician copied the images through the network onto a disk, which he then gave to the principal. The principal informed the School Board, and the laptop, along with the disk, was sent to the cyber-crime unit. The police did not obtain a warrant as they assumed that it was not necessary. Cole was charged with possession of child pornography under section 163.1 of the Criminal Code.
Writing for the court, Justice Andromache Karakatsanis held that the accused had a reasonable expectation of privacy in the contents of a work computer on which he was entitled to store personal information. Cole had exclusive use and possession of the laptop supplied by the School Board, he protected it with a password, and he frequently stored private financial information on the hard drive. Accordingly, police were not entitled to perform a warrantless search of the laptop, even after it was given to them by the School Board. This evidence was excluded under section 24(2) of the Canadian Charter of Rights and Freedoms.
Interestingly, the disk made by the technician was not excluded under the Charter. Because Cole knew that the technician could access the laptop through the network to perform routine checks, his right to privacy was subject to an implied right of access. Also, as Justice Karakatsanis observed, Cole could have no privacy interests in the images themselves, but merely the fact that they were on his laptop. Consequently, delivery of the images on the disk, once downloaded through the network, could not constitute a seizure by police. However, Cole did have a privacy interest in other information stored on the laptop, including his Internet browsing history.
The decision is likely to have far-reaching effects in the public sector as well as in the private sector. To avoid confusion and misuse, employers should think carefully about their terms of use agreements when providing computers or software to employees.
For additional information, please visit:
http://tinyurl.com/Privacy-Work-Computers
https://service.clearservice.com/itcan/campaignimages/1/www/newsletters/032411.pdf