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R. v. Cole

March 22, 2011

On March 22, 2011, the Ontario Court of Appeal issued a decision in R. v. Cole, 2011 ONCA 218.  The decision is notable from a privacy perspective, as the Court determined that, under specific circumstances, employees have a reasonable expectation of privacy in the contents of work computers. 

The appellant was a high-school teacher charged with the possession of child pornography and unauthorized use of a computer in violation of the Criminal Code.  He was provided with a school-issued laptop for work-related purposes.  In response to unusual network activity, a computer technician at the school gained access to the contents of the computer and the pornographic images at issue.  The computer and images were subsequently turned over to police for further investigation.  The appellant claimed that the police had infringed his right to be secure against unreasonable search and seizure under section 8 of the Charter of Rights and Freedoms.

The Court of Appeal determined that the appellant high-school teacher had a reasonable expectation of privacy from state intrusion in the contents of his work computer.  The Court noted, however, that this expectation was modified.  There was no expectation of privacy when the employer’s technician, acting within the scope of his functions, gained access to the computer for technical integrity and maintenance purposes. 

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