By: Mireille Khoraych

In the recent case of R v. Cole, 2009 CanLII 20699 (ON S.C.), Justice Kane of the Ontario Superior Court of Justice found that, in certain circumstances, employees do not have a reasonable expectation of privacy in the workplace.

This case involved a high school teacher who was charged with possession of child pornography under the Criminal Code. Prior to trial, the accused sought to exclude evidence which he claimed was obtained in violation of his “right to be secure against unreasonable search or seizure” as guaranteed by the Charter. The trial judge granted the accused’s request, with the result that the accused’s work laptop, the contents of the hard drive, the employer’s compact disks and the employer’s temporary internet file disks were all excluded from the evidence. On appeal by the Crown, the exclusion order was reversed by the Ontario Superior Court of Justice, which found no violation of the Charter guarantee.

An important factor in determining whether a person’s right to be secure against unreasonable searches has been violated is whether the individual has a reasonable expectation of privacy. Justice Kane stated that this analysis cannot be made without reference to the accused’s employment context, as the disputed material was obtained from his employer’s IT system.

Justice Kane found that the employee did in fact have a subjective expectation of privacy, but ultimately determined that this expectation was not objectively reasonable on the facts before him. Justice Kane based his conclusion on the following factors: (1) the laptop was issued to the employee as an instrument of his employment by his employer, (2) the laptop remained the property of the employer at all times, (3) the employee used the laptop in the course of his teaching duties, (4) the employee utilized the employer’s software, server and computer network and (5) the employer established rules regarding his use of that computer, including the permissibility of limited personal use and the limits to a user’s right of privacy. These factors were found to relate directly to whether the employee’s subjective expectation of privacy was objectively reasonable.

Of particular importance as well, was the fact that all teachers were reminded annually that the student Use Agreement (“UA”), which contained a “no privacy” clause, also applied to teachers. Furthermore, the employee in question was a sitting member on the schools’ IT committee and could be taken to have been aware of the terms of the UA, in addition to other school policies regarding privacy and inappropriate use of the employer’s IT systems. As a member of the IT committee, the employee supervised computer use by students and staff and was also aware that his employer regularly accessed and viewed information stored on computers connected to the school’s network.

Although this case involved a Charter challenge, and arose within the context of a Criminal Code charge, it nevertheless outlines general principles which are both relevant and applicable to the employment context. In general, the case supports the view that employees have a limited expectation of privacy when utilizing employer IT systems when this use arises out of an employment relationship. In light of the importance placed on IT policies by the court, employers can best protect against inappropriate use of their IT systems by developing well-crafted computer use policies that place limits on employees’ usage and privacy expectations and ensuring they are clearly and regularly communicated to employees.

For more information, please contact Mireille Khoraych at 416.864.7356 or your regular Hicks Morley lawyer.