The Supreme Court today issued its decision in R. v. Cole, strongly affirming that the constitution does extend to protect employees privacy rights at work, and rejecting the government’s assertion that an employer’s consent is all that is necessary for the police to access an employee’s private, personal information.
The CCLA intervened in R. v. Cole to argue that the private, personal information in our communication devices must be protected by the Charter – regardless of whether they are owned personally, or provided through our workplaces. Consistent with the Supreme Court’s decision, CCLA argued that employers should not be able to waive their employee’s privacy rights. Work computers and phones are frequently used for personal projects, phone calls and emails. Absent exigent circumstances, warrantless state access to this sensitive and personal information is an intrusive and extensive interference with the privacy interests enshrined in s. 8 of the Charter.
To read CCLA’s factum click here.
To read the Supreme Court’ decision click here.
Case background
The case, which was appealed from the Ontario Court of Appeal, arose when the respondent, a high school teacher, had his school laptop’s hard drive remotely accessed by a computer technician employed by the school. The technician accessed a hidden folder on the respondent’s hard drive to perform a virus scan and discovered nude photographs of a young female student. The images had been e-mailed by the student to another student, which the respondent accessed through the student’s email account in the course of his supervisory duties. The school’s technicians provided a copy of the photographs along with the respondent’s computer to police. The police searched the laptop and browsing history without obtaining a warrant and charged the respondent with possession of child pornography and fraudulently obtaining data from another computer hard drive. The trial judge excluded all the evidence from the laptop on the basis that the respondent’s s. 8 Charter rights were breached. The summary conviction appeal judge overturned the decision on the ground that the teacher had no reasonable expectation of privacy regarding the laptop’s comments. The Ontario Court of Appeal allowed the appeal and excluded evidence from the laptop, as it was obtained by police without first obtaining a proper warrant and thereby violated the respondent’s Charter rights. The Supreme Court agreed that the police actions had violated the respondents Charter right to be free from unreasonable search and seizure. Because the majority found that the lower courts erred when the excluded the evidence under s. 24(2) of the Charter, the appeal was allowed and a new trial has been ordered.
