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How Far Should Computer Privacy Go?

How Far Should Computer Privacy Go?

Just a few weeks ago, the Supreme Court of Canada handed down its ruling on an important issue relating to an individual’s privacy expectations in connection with their use of a computer. Although the question arose not in the context of Family Law but rather in relation to a criminal charge arising from a workplace scenario, the Court’s discussion sheds light on how far privacy rights can potentially be extended in connection with individual computer use in Canada.

In R. v. Cole, a high-school teacher had been criminal charged with possession of child pornography and the unauthorized use of a laptop computer that had been provided to him by his employer. While performing routine maintenance, the schools’ computer technician had discovered that the laptop contained a hidden folder containing nude and partly-nude photos of an under-aged female student. The school principal seized the laptop, together a CD that the technician had made which contained copies of the files. The laptop and CD were given to police, who viewed their contents without having had a search warrant.

At trial, the judge excluded all of the computer material, finding that it had been illegally obtained in circumstances that had breached the teacher’s Charter rights. In particular, two of his Charter rights had been infringed by the seizure and warrantless search:

1) his right to protection from unreasonable search and seizure (under s. 8); and 2) his right to have evidence excluded if it brings the administration of justice in disrepute (under s. 24(2)). The Court of Appeal upheld that decision in part, finding that there was no Charter breach in connection with the CD containing the copied photos, but that the laptop was to be excluded. It also ordered a new trial.

The Supreme Court of Canada essentially found that the evidence should not have been excluded, and confirmed the order for a new trial.

In coming to this conclusion the Court made some very important observations about how computers and the information they contain are used and viewed by contemporary Canadian society: Specifically, it found that computers that are reasonably used for personal purposes – whether at work or at home – contain information that is meaningful, intimate, and which “touch[es] on the user’s biographical core”. This is because internet-connected devices reveal users’ likes, interests, thoughts, activities, ideas, and specific searches for information, and moreover keeps a record of them in the browsing history and cache files.

As such – and even where a computer has been provided by an employer for use at workplace – Canadians have a right to reasonably expect privacy in connection with the information contained on that computer if incidental personal use is allowed (or is reasonably expected). Moreover, the question of who owns the computer is relevant but is not determinative of privacy expectations; instead, there must be consideration of all the circumstances, including contextual and societal factors.

Applying those factors to this teacher’s case, and being mindful that this was a workplace computer, the Court concluded that the teacher may have had diminished expectation of privacy (at least compared to his home computer), but his reasonable expectations had not been eliminated altogether. Furthermore, this reasonable-but-diminished expectation of privacy is still a Charter-protected expectation of privacy under s. 8, and could only be justified in accord with the principles of constitutional law.
With those principles in mind, the Court went on to consider the circumstances of the seizure and search itself, including the beliefs and conduct of the police officer who executed it. Overall, it concluded that the evidence should not be excluded; however, it also affirmed the Court of Appeal’s order for a new trial.

So what does this mean for Family Law?

Again, this was a criminal case, and is not directly relevant to issues arising from the discovery process in Family Litigation. However, the underlying assumptions harken back to my prior Blog posts about the use of social media sites such as Facebook [Russell: Add link] and how personal information contained on those sites can potentially be used as evidence in litigation [Russell: Add link]. It also demonstrates a growing willingness by Canadian courts to acknowledge and incorporate reasonable societal expectations in relation to the use of technology.

In short: the Supreme Court of Canada’s decision in R. v. Cole shows that in these kinds of situations there is a pivotal question: what level of privacy do members of Canadian society reasonably expect in connection with their use of computers – even ones that they do not personally own?

Your thoughts?

For the full text of the decision, see:

R. v. Cole, 2012 SCC 53

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.