On March 22, 2011, the Ontario Court of Appeal rendered a significant judgment concerning the protection of privacy in the workplace. Specifically, the Court had to determine whether an employee had an expectation of privacy when using a laptop made available by the employer on which he was allowed to retain personal information, and whether the individual’s rights under the Canadian Charter of Rights and Freedoms were breached by the search and seizure of certain contents in the laptop.
The case involves a high school computer science teacher who was arrested after police found nude photographs of a student (a minor) on the hard disk of a laptop owned by the school in his possession and use. He was charged under section 163.1 (4) and 342.1 (1) of the Criminal Code with possession of child pornography and fraudulently obtaining those photographs from the student’s computer.
This all came to light when a school computer technician who was working on the school server discovered a number of irregularities on the teacher’s computer and alerted the principal. The school board investigated and conducted a search of the employee’s hard drive and found a large number of pornographic images in the browser history. The board safeguarded the evidence on a disc and gave it to police officers who conducted further searches without a warrant or the teacher’s consent, claiming the computer was school property.
By acknowledging the employee’s expectation of privacy with regard to the contents of his laptop computer, the Court of Appeal found that the employee did have a reasonable expectation of privacy. They concluded that other teachers also used the school’s laptops for personal reasons, used individual passwords, that the school had no plans to use workplace policies to guide or restrict how staff used those computers.
Moreover, the Court stated:
Although this was a work computer owned by the school board and issued for employment purposes with access to the school network, the school board gave the teachers possession of the laptops, explicit permission to use the laptops for personal use and take the computers home … they employed passwords to exclude others … There was no clear and unambiguous policy to monitor, search or police the teachers’ use of their laptops.
However, the Court agreed that this expectation of privacy is not limitless. The employer has the duty to promote a safe learning environment and to this end, the computer technician acted within the scope of his functions by intercepting the illegal content and alerting the principal. Thus, the principal and the school board acted reasonably under the circumstances without violating the privacy rights of the individual under Section 8 of the Charter. On the other hand, the Court concluded that this was not the case for the police. In the Court’s opinion, the police violated Section 8 of the Charter, and under section 24 (2), the evidence obtained without a warrant must be discarded.
Many employment lawyers and privacy experts believe that this decision will have a significant impact for employers across the country, largely because the decision departs from the traditional tendency that ownership means control of workplace privacy. This is a further incentive for employers to ensure employees know what the rules are by implementing several very important policies related to privacy and computer, Internet and email use, as well as general conduct and behaviour in the workplace.
When implementing a policy governing the use of workplace computers, make sure to address monitoring, searching and policing, as well as permitted use. This will reinforce that employees should not have a reasonable expectation of privacy when using workplace computers.
To read more about this topic and obtain sample policies and procedures, consult the following First Reference Inc. publications:
Yosie Saint-Cyr
First Reference Human Resources and Employment Law Compliance Managing Editor
Yosie Saint-Cyr, LL.B. Managing Editor
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