Ontario Court Of Appeal Considers Employee Expectations Of Privacy In Information Stored On Work Computers

Article By Barry Kwasniewski*

Originally published in Charity Law Bulletin no. 250, April 18, 2011.

1. Introduction

   Many employees have access to a computer that is provided to them by their employer. Many charities and not-for-profits allow for the personal use of these work computers, for activities such as downloading, storing information, or browsing the Internet. However, when employees use work computers for personal use, the boundaries become blurred between what information can and cannot be protected by an individual's reasonable expectation of privacy. In R. v. Cole,1 a recent decision of the Ontario Court of Appeal, the court discussed an employee's expectation of privacy in information stored on a work computer. This Charity Law Bulletin summarizes this decision and discusses the privacy implications for employers/employees.

2. Background to the Decision

   The Case

   Richard Cole, a teacher employed by the Rainbow District School Board, was criminally charged with possession of child pornography after the school board's IT staff found nude photographs of a 16 year old Grade 10 student on his school-owned laptop computer. In his defence, Mr. Cole applied to exclude evidence based on an alleged breach of his right from unreasonable search and seizure, pursuant to section 8 of the Canadian Charter of Rights and Freedoms. The decision deals with the factual and legal issues arising on the application to exclude evidence obtained as a result of the seizure.

   The Facts

   The teacher was provided with a laptop by the school for use in teaching communication technology and supervising a laptop program for students. As a supervisor, he was able to remotely access the data stored on student computers within the school network. At some point during his employment, he accessed a student's email account and copied nude photographs of one of the students onto the hard drive of his work laptop. As computer technicians for the school board have the responsibility of monitoring and maintaining the integrity and stability of the school network, one of the computer technicians observed an unusual amount of activity between the teacher's laptop and the school's server, which sparked a search of the contents of the teacher's hard drive. In this search, the computer technician came across a hidden folder on this hard drive, which exposed the nude photographs of a 16-year-old student. The computer technician reported the images to the principal of the school...