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Privacy expected when personal computer use is allowed

Article Originally Published on October 25, 2012 by Advocate Daily. 

Employers who allow any personal use of company computers will virtually guarantee an expectation of privacy by the employee in the personal data they generate on that computer.

In R. v. Cole, the Supreme Court of Canada found a reasonable expectation of privacy by the teacher/employee even in the face of a pretty clear articulation by the school that the computer and its data were the property of the school. That factor “diminished” the expectation of privacy by Richard Cole, but didn’t extinguish it.  Read R. v. Cole … Read Globe and Mail

The court underlined that the s. 8 Charter right against unreasonable search and seizure protects people not places, (information not devices), and that who owns the device really is irrelevant if the person is invited to use it for personal activities. No amount of tweaking the computer usage policy will guarantee that the police won’t need to get a warrant. However, this result will not have any practical effect on employers in the context of criminal investigations.

A policy that makes it clear that the employer can search the entire computer at any time is sufficient to at least diminish the expectation of privacy. With such a policy, the employer can legitimately search the computer for evidence of illegal activity, and if grounds exist, they can summon the police. At that point the device will be turned over to the police.

The police are going to be absolutely mandated to secure the device without searching it and get a search warrant, and wait until it is signed to start reviewing it. The employer does not have the power to “consent “ to the search on behalf of the employee because the elements of true consent are missing.

Section 8 Charter motions continue to be an exercise in futility for the defendant

Disappointingly, the court continued the trend to be very strict about the circumstances where it will exclude real evidence gathered during an illegal search.

Notwithstanding that the majority of the court found a violation of s. 8 of the Charter through a warrantless search by an officer who had the time and grounds to get a warrant, the illegally-gathered evidence was to be admitted.

The question once again is what is the point of all that difficult and expensive work to protect rights under the Charter when there is no real advantage to the defendant when he or she proves rights were violated?

As participants in the criminal justice system see illegally-obtained evidence being ruled admissible over and over, a real cynicism takes hold. There was a brief but golden period when prosecutors and police officers were keenly aware that a Charter misstep could cost them their case. Now it is very hard for a criminal lawyer to recommend that a client expend scarce resources on Charter motions when the trial courts are repeatedly being told to admit illegally-obtained material.

Justice Rosalie Abella’s passionate dissent echoes the sentiments of most defence lawyers who were discouraged by the majority’s very forgiving approach to the rights-violating police work. However, as any litigator will tell you, passionate dissents are the legal embodiment of “cold comfort.”

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