Discovered Inappropriate Child Material on Work-Issued Computer

A recent ruling from Canada’s Supreme Court means that Canadians can still expect privacy in the information contained on work-issued computers if personal use is permitted or reasonably expected.

According to a report from Canadian OH&S News, The Supreme Court of Canada has ordered a new trial for a teacher charged with possession of inappropriate child material, after ruling that excluding unlawfully-obtained material discovered on his work-issued laptop would negatively impact the criminal trial process. The decision said that although the high school teacher’s privacy interests were diminished due to school board ownership of the laptop and workplace policies regarding computer use, the expectation of privacy is warranted where the computers are allowed for personal use.

Ruled Evidence Inadmissible

“While workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sort of operational realities do not in themselves remove the expectation entirely: The nature of the information at stake exposes the likes, interests, thoughts, activities and searches for information of the individual user,” wrote Justice Morris Fish for the 6-1 majority.

The case centered on the privacy interests of Richard Cole, who was charged after a computer technician found a hidden folder containing nude and partially nude photographs of an underage female student on his laptop during maintenance activities. The technician notified the principal, who ordered the photographs be copied to a CD. The principal then seized the laptop and technicians copied temporary Internet files onto a second disc. The laptop and both discs were handed over to the police, who reviewed their contents and created a mirror image of the laptop’s hard drive for forensic examination, all without a warrant.

The Supreme Court decision notes that the trial judge excluded all of the computer material, finding that it breached the right to be secure from unreasonable search or seizure pursuant to Section 8 of the Canadian Charter of Rights and Freedoms. On appeal, the Court of Appeal for Ontario set aside that decision and excluded all material except for the disc containing the photographs, which it found to be legally obtained and admissible.

Police Infringed on Privacy Rights

In ordering a new trial, the Supreme Court ruled that the police infringed on Cole’s rights under Section 8 of the Charter, as receipt of the computer did not afford the police warrantless access to the personal information contained within. However, the conduct of the police officer in this case was not an egregious breach of the Charter, the Supreme Court ruled.

“In sum, the admission of the evidence would not bring the administration of justice into disrepute. The breach was not high on the scale of seriousness, and its impact was attenuated by both the diminished privacy interest and the discoverability of the evidence,” Fish wrote, explaining that had the officer obtained a warrant, the evidence would have been discovered.

“The exclusion of the material would, however, have a marked negative impact on the truth-seeking function of the criminal trial process. For all these reasons, I would not exclude the evidence unlawfully obtained by the police in this case,” he wrote.

Employers to Manage Employee Expectations of Computers

According to a Toronto lawyer, employers can “manage employees’ expectations by making sure you have a policy that clearly states computers and the data on computers are the property of the company, outline the acceptable use of the computer and put employees on notice that their use will be monitored.” In this case, the school board did all three.

“One thing that employers will be well-cautioned to keep in mind is that it’s one thing to have a policy, the other thing is to communicate that policy to employees and to make sure that everyone that comes into the organization is trained on that policy,” the lawyer said. “So sit people down for an hour and go through what the policy actually says.”

Author Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher.  www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.

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