OTTAWA—Employees have a privacy right over personal use of workplace computers and should not be subject to warrantless police searches, the Supreme Court of Canada ruled Friday.

In a 6-1judgment that has implications across the country, the high court said an individual’s expectation of privacy over data may well be lessened if the computer belongs to an employer or if strict workplace policies bar personal use. Yet police must still obtain a warrant to seize its contents, according to the majority decision written by Justice Morris Fish.

“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,” the court found. “Canadians may therefore reasonably expect privacy in the information contained on these computers, at least where personal use is permitted or reasonably expected.”

The court ordered a new trial for Ontario teacher Richard Cole, charged with possession of child pornography and unauthorized use of a computer.

Cole taught computer science and was responsible for monitoring students’ use of their networked laptops. Even though Cole knew his own computer could be monitored, he downloaded nude and partially nude photos that a Grade 10 student had shared with a friend via email. An IT technician conducting maintenance discovered the photos in a hidden folder on Cole’s computer. The principal was alerted, and ordered Cole’s files copied.

The Supreme Court of Canada said the principal and school board had the statutory authority to protect students and regulate the workplace, and did have a legal power to search and seize Cole’s laptop contents.

But, in an important distinction, the judges ruled the principal couldn’t turn around and hand that material over to the police. Fish wrote: “The lawful authority of the accused’s employer to seize and search the laptop did not furnish the police with the same power.”

It wasn’t a clear victory for Cole, nor is it a licence for employees to use workplace devices for criminal activity.

The court said the Crown could introduce at Cole’s trial the evidence seized by police, despite it having been obtained in an unconstitutional manner.

The police, called in by the principal to investigate, acted in “good faith”; the search wasn’t “egregious” and society has an interest in seeing the charges “adjudicated on the merits,” Justice Fish wrote. Justice Rosalie Abella dissented from the majority, saying the unconstitutionally obtained evidence should be excluded altogether.

The Ontario Appeal Court had already found Cole had no privacy right over his copies of the student’s photos; only the student could claim privacy over those, a finding that was not in dispute at the high court.

However, Cole claimed privacy over his other temporary Internet files and hidden computer folders, and a mirror image of his hard drive that the Crown alleges contained pornographic images.

Lawyer Frank Addario, who argued Cole’s appeal, said the decision “is a significant expansion of the privacy right” of individuals, and expressly recognizes not just email, but also a person’s Internet use and web browsing as “protected private information.”

He said police increasingly search smart phones and personal computing devices, scan websites visited and use it for investigative purposes without a warrant. Now it’s clear, says Addario, that police need a warrant. The admission of the tainted evidence in the Cole case “was really a gift to police in a situation where the law was in flux,” he said.

Lawyer Jonathan Dawe, who intervened on behalf of the Criminal Lawyers Association (Ontario), agreed, saying “in future it’s going to be clear that police should get a warrant.”

The federal government has proposed a bill, C-30, which would allow police warrantless access to Internet Service Provider information about internet users, but Dawe said that while both matters raise privacy over data, the two issues are only linked “at a very high level of abstraction.”

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Dawe said the judges left open exactly which “informational content” the privacy right covers, but signalled they are concerned about files or emails that the employee personally creates, “documents they save, things they download, records of their Internet surfing and other stuff.”

“I think the logic of it applies pretty much equally” to other personal electronic data storage devices too, not just laptops, Dawe said. “Smart phones are just basically small computers that you can put in your pocket; they have more processing capacity than your desktop computer had 10 years ago. I don’t think there’s a meaningful distinction that really can be drawn anymore between smart phones and computers.”