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SCC Affirms Reasonable Expectation of Privacy on Work Computers

October 19, 2012
The Supreme Court of Canada released its decision today in R. v. Cole confirming that, under specific circumstances, employees have a reasonable expectation of privacy in the contents of work computers.
This case concerned the discovery by a technician of child pornography while conducting routine maintenance on the school-issued laptop of the accused, a high school teacher. The principal  of the school authorized the technician to make copies of the images, and the computer and images were subsequently provided to the police for further investigation and evidence-gathering.
In determining that the accused had a reasonable expectation of privacy from state intrusion through the warrantless search and seizure by police of the contents of his work computer, the SCC stated that:
"Computers that are reasonably used for personal purposes - whether found in the workplace or the home - contain information that is meaningful, intimate, and touching on the user's biographical core. Vis-à-vis the state, everyone in Canada is constitutionally entitled to expect privacy in personal information of this kind. While workplace policies and practices may diminish an individual's expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely ..." 

"A reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter. Accordingly, it is subject to state intrusion only under the authority of a reasonable law."

For a full copy of the decision, see R. v. Cole, 2012 SCC 53. This decision will be discussed in detail on the next AccessPrivacy Monthly Call on November 21, 2012 at 11:30 a.m. (Eastern Daylight Time). Register for November's Monthly Call.  
For additional details, see the Heenan Blaikie Labour and Employment Group’s Workplace Wire article on this decision.

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