Pornography discovered in the workplace – Employees’ rights to privacy

R v Cole 2012 SCC 53 (19 October 2012) Summary

Nude photographs of an underage female student were discovered on a teacher’s work laptop. He was charged with possession of child pornography and unauthorised use of a computer under the Criminal Code R.S.C. 1985, c. C-46. The actions of the police in obtaining possession of the accused’s computer (and files copied from it) raised questions about the accused’s rights to be free from unreasonable state search and seizure under section 8 of the Canadian Charter of Rights and Freedoms. While employer ownership of the computer diminished the accused’s reasonable expectation of privacy, it was not eliminated. The Supreme Court of Canada held that the accused’s section 8 rights had therefore been breached. However, the admission of the evidence would not bring the administration of justice into disrepute under section 24(2) of the Charter. A retrial was ordered.

Facts

A laptop was issued to the accused, a school teacher, by his employer. A technician, performing maintenance of the accused’s laptop, found a folder containing nude photos of a teenage student. The technician notified the school principal. The material was duplicated by:

  • the technician, who copied the photographs to a CD; and
  • school board technicians, who copied temporary internet files to a second CD.

The laptop and both CDs were handed to the police, importantly, without a warrant. The police created a mirror image of the laptop’s hard drive. These two discs and the image created by the police were the subject of this case (the Evidence).

The school board’s Policy and Procedures Manual allowed for incidental personal use of the laptop. It stipulated that teachers’ emails were subject to access by school administrators in certain circumstances. The school’s Acceptable Use Policy warned users not to expect privacy in their files.

The trial judge found there was a breach of the accused’s section 8 rights and excluded the Evidence. The summary conviction appeal court found there was no section 8 breach and reversed the decision. The Court of Appeal for Ontario overturned this decision and excluded all Evidence except the first-made disc. The prosecution then appealed to the Supreme Court of Canada.

Decision

Section 8 of the Charter

Section 8 of the Charter states that everyone “has the right to be secure against unreasonable search or seizure”. It is enlivened where the claimant has a reasonable expectation of privacy. The Court stated the principle that privacy is “a matter of reasonable expectations. An expectation of privacy will attract Charter protection if reasonable and informed people in the position of the accused would expect privacy”.

The accused had a subjective expectation of privacy in the laptop; he had used it to browse the internet, and had stored personal information on its hard drive. The Court therefore only had to consider whether, in the “totality of the circumstances”, the accused’s expectation of privacy was, objectively, reasonable.

Arguing against this, the prosecution relied on the following:

  • the accused did not own the laptop, it was assigned to him by his employer for predominantly work purposes;
  • the accused was aware the laptop could be accessed remotely by school board technicians; and
  • the laptop’s usage policy permitted others to access the laptop and assigned ownership of data generated by the laptop to the school board.

However, irrespective of ownership, computers used for personal purposes may contain intimate personal details. Laptops may store financial and medical information and the internet search history may reveal likes, interests and propensities. The Court held that it was precisely this kind of information that fell “at the very heart of the ‘biographical core’ protected by section 8 of the Charter”.

The Court held that “[t]he closer the subject matter of the alleged search lies to the biographical core of personal information, the more this factor will favour a reasonable expectation of privacy. Put another way, the more personal and confidential the information, the more willing reasonable and informed Canadians will be to recognize the existence of a constitutionally protected privacy interest.”

Careful not to provide a definitive list of factors, the Court concluded that while the accused’s lack of ownership of the laptop and the school policies diminished his reasonable expectation of privacy, they did not extinguish it.

The Court concluded that the search and seizure of the Evidence, except the first disc (which was not in question), was improper, upholding the decision of the Court of Appeal for Ontario.

Section 24(2) of the Charter

Secondly, the Court considered whether the administration of justice would be brought into disrepute if the unconstitutionally obtained evidence was not excluded under section 24(2) of the Charter.

The Court decided that the police did not knowingly or deliberately disregard the warrant requirement and did not act in bad faith. The police officer in question had turned his mind to whether the accused had an expectation of privacy in the laptop. As he was told that the only private material was photographs of the accused’s wife, he did not consider the nature of other material. This was not an egregious or deliberate breach of the Charter, and accordingly the improperly obtained Evidence was not excluded. A retrial was ordered.

Commentary

The case highlights the importance of an individual’s right to privacy and supports expectations that employee’s information contained on work computers is protected, despite any workplace policies. Importantly, the Court held that the more private and personal the information is, the more likely a person to have a reasonable expectation of privacy regarding that information.

In Victoria, the equivalent right is section 13 of the Charter of Human Rights and Responsibilities Act, which states that “a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with”.

While the case reinforces the reasonableness of such an expectation of privacy, it also illustrates how a balance must be struck between the interests of the individual and the administration of justice. The bigger picture, involving considerations of the “truth seeking function of the criminal trial process”, the fact that the evidence had not been obtained by an “egregious breach of the Charter” and the “highly reliable and probative” nature of the evidence, was not ignored.

The decision is available online at http://canlii.ca/en/ca/scc/doc/2012/2012scc53/2012scc53.html

Alexandra Pieniazek, Solicitor, King & Wood Mallesons Human Rights Law Group

MichelleBennettPrivacy, Human Rights Law & Institutions