Privacy expectations and work computers

Most Canadians are aware that under normal circumstances police are not entitled to search a person's home without a warrant, due to protection of the Canadian Charter of Rights and Freedoms.

It is also long settled law that Charter protection also applies to warrantless searches of a personal computer. Until last week, however, the law has been unclear as to the degree of Charter protection that applies to searches of a laptop computer issued by an employer, when the employer retains ownership of the computer.

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The Supreme Court of Canada recently clarified this in the case of R. v. Cole.

Richard Cole was an Ontario high school teacher. The school had issued Mr. Cole a school-network-connected laptop. The school's technicians were expected to access school laptops remotely to perform maintenance. Mr. Cole was expected to use the laptop for teaching work and to monitor student use of computers on the school network.

The school board's Policy and Procedures Manual also allowed for "incidental personal use" of the computer. This same manual, however, was clear that not only the computer, but "all data and messages ... are considered to be the property of (the school board), and are not the property of the users ..."

The school also had an Acceptable Use Policy that governed use of computers, which applied to teachers and students (and was, in fact, the policy relied upon by Mr. Cole when assessing students' computer usage). This policy held "... administrators may monitor ... material saved on laptop hard drives."

In the course of performing maintenance on Mr. Cole's issued laptop, a school technician found a folder containing nude and semi-nude photographs of a student. The technician notified the principal who authorized him to copy the photographs onto a disc. The principal then seized the laptop and arranged for a copy of all temporary Internet files also to be copied to a disc, and turned the discs and computer over to police.

The police reviewed the contents without a warrant and created a mirror image of the hard drive. They charged Mr. Cole with possession of child pornography and unauthorized use of a computer.

The case wound its way through the Ontario courts, with the Crown and Mr. Cole arguing over the validity of the searches and whether the products of those searches could be admitted into evidence. It was accepted that school officials did have every right to search and seize the laptop and data, given the manual and policy in place at the time, which was made known to Mr. Cole.

The ultimate appeal to the Supreme Court of Canada focussed on one main question: Did the authority of school officials to search and seize the laptop and files, by extension, provide the police with authority to conduct a warrantless search and seizure of these?

The court found, "the more personal and confidential the information, the more willing reasonable and informed Canadians will be to recognize ... protected privacy interests." It also found that data on a computer hard drive, including Internet search histories, is at the "biographical core of personal information," and thus deserves protection.

The court thus found Mr. Cole did have a reasonable expectation of privacy in the laptop, therefore the searches by police were a breach of his Charter rights, but also held that the evidence found via the unlawful searches ought to be admitted into evidence.

The court focussed on the "totality of the circumstances," to determine whether the school was entitled to provide "third party consent" to allow searches by police, because the school retained ownership over the computer and files.

The court said: "For consent to be valid, it must be both voluntary and informed. The adoption of ... third party consent in this country would imply the police could interfere with an individual's privacy interests on the basis of a consent that is not voluntarily given ... and not necessarily based on sufficient information ..."

Despite this, the court went on to consider whether the information ought to be admitted into evidence despite the Charter breach. It considered whether it would "bring the administration of justice into disrepute," asking whether the breach was "egregious", and whether the information would likely have been found if police had gone through proper channels.

The court found the breach was not "egregious," because the police did consider Mr. Cole might have a privacy interest in the laptop, but weighed that against the "operational realities" being that the school owned the device and data. This amounted to a "diminished ... reasonable expectation of privacy" by Mr. Cole. The court also found that if police had preserved the evidence while applying for a warrant, as it ought to have done, the warrant would have been issued and the information would have been found.

Finally, the court considered "society's interest" in having this particular case heard with all facts disclosed. It found that "... the circumstances of this case ... clearly weigh against exclusion of the evidence".

The Supreme Court of Canada ordered a new trial, with all evidence to be before the court.

What guidance does this case provide to users of work-issued laptop computers, who may find themselves the target of a police investigation?

This judgment means users of work computers do have a reasonable expectation of some, but not complete privacy from warrantless searches of those computers. The expectation and protection in any particular case will be greater or lesser depending on the totality of the circumstances, including work policies and other "operational realities."

If a privacy breach occurs that is not "egregious" and police do find questionable data on a work issued computer that leads to criminal charges, the court may still consider all of the circumstances to decide whether the material ought to be admitted into evidence despite the breach. If the subject matter is of a high degree of importance to society, for example child pornography, the court may well decide to admit it.

Many would likely agree that, with this decision, the Canadian courts have struck an appropriate, delicate balance between individual civil liberties and the protection of society as a whole.

Corey Steinberg is a lawyer practicing personal injury and general litigation at Double Diamond Law in Whistler.

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