This blog considers the implications that a recent criminal law decision may have for employment law. While it is uncommon for criminal law and employment law to intersect, a recent evidentiary issue decided by the Court of Appeal for Ontario could have significant implications for employment cases dealing with dismissals for cause or misconduct.

In the recent decision of R. v. Cole, 2011 ONCA 218 (CanLII), the Court of Appeal considered the case of a Sudbury high-school teacher who was charged with possession of child pornography and unauthorized use of a computer contrary to the Criminal Code. The teacher had saved illegal images on a laptop provided by his employer, which remained the property of the school board.

When the laptop was serviced by a school board computer technician, the technician discovered the illegal images, including images of a student at the teacher’s school. The technician reported the images to the school, which notified the school board, and eventually the police became involved.

The police did not obtain a search warrant to access the images on the laptop. Instead, they relied on the employer’s permission to search the laptop. The trial judge excluded the images from evidence, finding that they were obtained in a manner that violated section 8 of the Charter of Rights and Freedoms, which protects against unreasonable search and seizure. The trial judge held that the accused had a reasonable expectation of privacy concerning personal documents saved on the work laptop.

A summary judgment appeals judge reversed the trial court’s exclusion of evidence, and the decision was subsequently appealed to the Ontario Court of Appeal.

The Court of Appeal took a contextual approach in determining whether a reasonable expectation of privacy existed, noting the following factors:

  • The laptop was a work computer owned by the school board.

  • The computer was issued for employment purposes with access to the school network.

  • The school board gave teachers possession of the laptops, including explicit permission for personal use.

  • Teachers were permitted to take the laptops home during evenings, weekends, and summer vacation.

  • Teachers used passwords to restrict access and stored personal information on the laptops.

  • There was no clear policy explicitly permitting the employer to monitor, search, or police teachers’ laptop use.

It is important to note that the Court of Appeal did not find that the school or school board breached the teacher’s section 8 rights, only that the police had breached his rights.

The R. v. Cole decision clearly establishes that, in the right circumstances, employees can have a reasonable expectation of privacy in the information stored on employer-owned devices. Mere ownership of a device does not automatically entitle the employer or the police to search personal information stored on that device.