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Supreme Court of Canada grants leave to controversial employee laptop privacy case
On October 20, 2011, the Supreme Court of Canada granted leave to appeal the decision of the Ontario Court of Appeal (“ONCA”) in R. v. Cole, 2011 ONCA 218. The ONCA 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.
The Respondent in the leave application to the Supreme Court of Canada, 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 pornographic images at issue. The computer and images were subsequently turned over to police for further investigation.
The ONCA determined that the high-school teacher had a reasonable expectation of privacy in the contents of his laptop based on the following factors:
1. he had exclusive possession of the laptop;
2. he had permission to use it for personal use;
3. he had permission to take it home on evenings, weekends and summer vacation;
4. there was no evidence the board actively monitored teachers’ use of laptops; and
5. the board had no clear and unambiguous policy to monitor, search or police the teacher’s use of his laptop.
For additional information, please visit:
https://service.clearservice.com/itcan/campaignimages/1/www/newsletters/110211.pdf