Supreme Court of Canada rules on privacy rights of employees

October 20, 2012
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The Supreme Court of Canada, in R. v. Cole, 2012 SCC 53 (CanLII) recently confirmed that Canadians may reasonably expect privacy in the information contained on their workplace computers.

The case involved a teacher whose board-issued laptop was found by a technician to contain child pornography. The laptop was seized and handed over to police, along with discs containing copies of the pornography. The police reviewed the contents of the laptop and discs without first obtaining a warrant. The trial judge excluded the computer material, citing a breach of the teacher’s rights under sections 8 and 24(2) of the Charter. The Ontario Court of Appeal overturned the trial judge’s ruling, in part (for details, see our March 2011 blog entry, below). Ultimately, the Supreme Court upheld the Court of Appeal’s ruling, holding that the teacher had a reasonable expectation of privacy and as a result, a search warrant should have been obtained prior to searching the laptop.

Despite the fact that this decision stems from a criminal case, it will certainly have an influence on Canadian employment law. Justice Fish’s ruling is of particular interest to employers due to its recognition that workplace computers can be reasonably used for personal purposes. Justice Fish wrote that in those cases, computers may contain information that is “meaningful, intimate, and touching on the user’s biographical core”. The decision confirms that Canadians are constitutionally entitled to expect privacy in personal information of this kind. Therefore, while workplace policies and procedures may diminish an individual’s expectation of privacy in a workplace computer, they do not remove the expectation entirely.

In light of this decision, employers would be well advised to draft workplace policies that clearly delineate the extent to which electronic devices (including computers, smartphones, Ipads etc…) can be used for personal purpose by employees and whether those devices may be monitored and/or searched by the employer.

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