Employees have privacy rights over workplace computers says Supreme Court

Employees have a privacy right over personal use of workplace computers and should not be subject to warrantless police searches, the Supreme Court of Canada ruled Friday.
In a 6-1 judgment that has implications across the country, the high court said an individual’s expectation of privacy may well be lessened or diminished if the computer belongs to an employer or if strict workplace policies bar personal use. However the majority ruling written by Justice Morris Fish said police must still obtain a warrant to seize contents.
The court ordered a new trial for teacher Richard Cole, charged with possession of child pornography and unauthorized use of a computer.
Cole, an Ontario teacher who taught computer science and was responsible for monitoring students’ use of their school-issued computer accounts, discovered and downloaded nude and partially-nude photos that a Gr. 10 student had shared with a friend via email.
The Supreme Court of Canada said the school board and principal have the statutory authority to protect students and regulate the workplace, and do have the power to search and seize Cole’s laptop contents, but in an important distinction, the judges ruled the principal couldn’t turn around and hand that material over to the police. Police still need to obtain a warrant to search and seize computer files.
“Computers that are reasonably used for personal purposes — whether found in the workplace or the home — contain information that is meaningful, intimate and touching on the user’s biographical core,” the court said.
“Canadians may therefore reasonably expect privacy in the information contained on these computers, at least where personal use is permitted or reasonably expected.”
It wasn’t a clear victory for Cole however, nor is it license for employees to use workplace devices for criminal activity.
The court said in this case the Crown can rightly introduce at trial the suspect evidence seized by police.
Called in by the principal to investigate, the police acted in good faith; the search wasn’t “egregious” and society has an interest in seeing the charges “adjudicated on the merits,” Justice Fish wrote.
The Ontario Appeal Court had already found Cole had no privacy right over his copies of the student’s photos. The issue of the photos was not in dispute at the high court.
Cole claimed privacy over his other temporary Internet files and hidden computer folders, and a mirror image of his hard drive that the school handed over to police, and the Crown alleges contained pornographic images.


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