Reasonable – But Diminished – Expectation Of Privacy In Contents Of Employer-Owned Laptop

Justice Fish, writing for the majority of the Supreme Court of Canada, has held that while an employer's ownership of a laptop, its workplace policies and practices, and technology in place can diminish an employee's reasonable expectation of privacy, they do not eliminate it: R v Cole, 2012 SCC 53.

There is no definitive list of factors to determine the extent of an employee's reasonable expectation that the contents of a work-owned computer will be private, but the more the information on the computer relates to 'the biographical core of information' about the employee, the more reasonable that expectation. An employer will need to have a serious reason to search an employee's computer. The school board did in Cole, in light of its statutory mandate to maintain safe school environment, but this did not justify a warrantless search by the police. The police, who acted independently of the board, clearly breached Cole's Charter rights. The majority did not think, however, that the evidence obtained from the police search ought to be excluded. The police acted in good faith and in something of a legal vacuum on the whole issue of privacy expectations in work computers, and Cole's expectation of privacy was in any event attenuated by the realities of his workplace. There were also good reasons to conclude that the evidence obtained was critical to the prosecution. On balance, admitting the evidence obtained from Cole's laptop would not bring the administration of justice into disrepute. A new trial was directed on that basis.

Cole was a high-school teacher who was charged with possession of child pornography which he stored on a laptop issued by the school where he taught. A member of the school's IT department had noticed unusual internet usage patterns on Cole's part and was directed by the principal to search the laptop. Cole appeared to have accessed sexually explicit photos of a naked girl, later identified as a grade 10 pupil at the school, in another student's e-mail account, using his domain-level access to the school network. The principal passed this...