Law Times

Law Times • November 5, 2012 O Government business continues despite prorogation COMMENT the combined forces of the NDP and the Conservatives. By proroguing the legislature, stepping ntario Premier Dalton McGuinty has resorted to guerilla tactics in his battle to keep a grip on power against down as leader, and announcing his intent not to run again, he has eff ectively shiſt ed the battlefi eld to the streets where he can simply pop up and lay down some verbal fi re before ducking back to cover. He did that last week, opining that proroguing wasn't such a big deal because Ontario' sits more days than other provinces. Th e clock, however, is ticking. Prorogation buys a cooling-off period s legislature normally and makes time for the Liberals to fi nd a new leader and develop a new strategy to return with, presumably by February or early spring. Th ey can then try to convince the world they've been through a metamorphosis and will magically be in a position to lead the province once again. It isn't going to happen. Cabinet ministers are already throwing in the towel. Dwight Duncan and Chris Bentley have both announced they won't be back aſt er this term. Th e price of prorogation is that the ship is going down and it' s everyone for themselves. Now it's just a question of time before the inevitable happens and we're off to a general election. Recent polls are refl ecting that with the NDP surging to 32 per cent while the Tories hold steady at 35 per cent and the Liberals sink to 26 per cent, a dozen points down from last year' Queen's Park Ian Harvey expert Peter Russell, it really is business as usual for the government even as democracy remains on hold. "Th is is not a caretaker government In the meantime, says constitutional s election. course, is that in shutting down the legislature, they've also killed some 100 or so bills, some of which was sensible legislation. Still, as Russell notes, the business of government continues. Th e government will still cut cheques, issue payments, and approve contracts. Life will ostensibly go on. Appointments to agencies and Th e biggest tragedy, of Undoubtedly, a slate of party faithful will get their just rewards before time runs out. In some cases, ministries may not situation," says Russell, who coincidentally just returned from a conference at the University of Regina with other constitutional scholars. "Th ey've simply just shut down the house and technically, the government hasn't lost the confi dence of the house. " other bodies will also continue unabated and unchallenged. function at full speed because the premier told those who want to run for the party leadership that they must fi rst step down if they hold a cabinet portfolio. With no minister in place, it may mean putting decisions on hold. "Th at will be interesting, but then from my sense of the public service, they are generally very conservative and cautious anyway," says Russell. "Th ey won't be in much of a hurry." government may use orders in council to change regulations or update statutes without need for the consent of the house. "Subordinate legislation must allow it, Where legislation allows, he adds, the though," says Russell. "It must be written into the legislation." Th e government can't use an order in council to legislate the public service into accepting a contract, he notes, because the Ontario Labour Relations Act doesn't allow for it. Meanwhile, aſt er nearly two years of PAGE 7 virtual legislative paralysis, it will be a relief to see if a majority government can form aſt er the next election regardless of which political stripe it is. Like many people around Queen' LT Park, I've become a clock-watcher. s Ian Harvey has been a journalist for 35 years writing about a diverse range of issues including legal and political aff airs. His e-mail address is ianharvey@rogers.com. I BY DUNCAN BOSWELL For Law Times Is there privacy for workplace computers? u SPEAKER'S CORNER vigilant in monitoring the activities of all of its cit- izens. It was a frightening and sober commentary on the potential reach of new technologies. In many ways, Orwell' n his classic novel 1984, George Orwell im- agined a world where Big Brother was always watching. Whether it be on the street or in your own home, the government was being constantly Th e interconnectivity of the digital era not only allows each and every one of us access to the world' but also to view satellite images of anywhere on Earth. In this day of information overload and social s vision has become reality. s libraries media, is there any room remaining for privacy? Th e Supreme Court of Canada, in its recent decision in R. v. Cole, has reaffi rmed that there is. In Cole, the court considered whether there was without a warrant, in the prosecution of the criminal charges. In considering whether Cole had a reasonable ex- pectation of privacy on his school-owned computer, the court considered the policies and procedures of his employer. Th e board had a policy and proced- ures manual that allowed for incidental personal use of the computer and stipulated that teachers' e-mail would remain private, although this was subject to access by school administrators under certain con- ditions. Th e teacher could also protect the computer with a password. However, the policy stated that all data and mes- a reasonable expectation of privacy for a computer found in the workplace. Richard Cole was a high school teacher who was responsible for policing the use by students of their own networked laptops. To this end, the school board supplied Cole with a lap- top computer it owned. One of the school technicians, while performing maintenance activities on Cole's computer, discov- ered a hidden folder containing nude and partially nude photographs of an underage female student. Th e school administration then had the technician make CDs containing the photographs as well as the temporary Internet fi les showing the sites Cole had accessed. Th e board gave the laptop and the two CDs to the police. Th e police reviewed the computer and CDs without a warrant and charged Cole with pos- session of child pornography and unauthorized use of a computer. A motion was brought to exclude the computer sages generated on or handled by board equipment are the board' board further had an acceptable use policy that ap- plied to teachers. Th at policy stated that administra- tors might monitor all work and e-mail, including materials saved on the hard drives. Th e policy warned that users should not assume that fi les stored on net- work servers or hard drives of individual computers would be private. Despite these warnings, policies, and procedures, s property and not that of the user. Th e the court held that Cole still retained a reasonable expectation to privacy. Th e court noted that the ex- pectation of privacy was not as high as information contained on a personal home computer and that workplace policies and practices may diminish an individual' Nonetheless, although the expectation of privacy is lower, it still exists. Th e court noted that the right to privacy is in- s expectation of privacy on a work device. evidence as being contrary to s. 8 of the Charter of Rights and Freedoms. Cole, unfortunately, did not challenge the initial inspection of the laptop com- puter by the school technician and conceded that the technician did not breach his s. 8 rights. As a result, the court did not consider the question of an employer's right to monitor computers issued to employees. Nonetheless, the court noted that school principals had a statutory duty to maintain a safe school environment and, by necessary implication, a reasonable power to seize and search a school board- issued computer if they had reasonable grounds to believe the hard drive contained compromising photographs of a student. Th e issue before the court was therefore restricted to whether the police could use the computer and the information on it, obtained dependent of ownership of either the computer hard- ware or the soſt ware. It was an informational privacy of the data or the content of the hard drive. Th e court defi ned informational privacy as being the "claim of individuals, groups or institutions to determine for themselves when, how, and to what extent information about them is communicated to others." Th e court acknowledged that employers increas- diminishment of the expectation as to privacy but it does not eliminate it. In analyzing the extent of the right to privacy on parts of the policy and actual practice that permitted Cole to use his work-issued laptop computer for per- sonal purposes. Against the expectation of privacy were the portions of the policy and the technological reality of access by school technicians that deprived Cole of ex- clusive control over and access to any personal informa- tion he chose to save on the computer. On balance, the court concluded that Cole had a diminished but extant reasonable expectation of privacy. Th e court also considered whether a third party, the a work computer, the court determined that it was a question of balance. In favour of privacy were the school board, could validly consent to a warrantless search or seizure of a laptop issued to one of its employ- ees. It specifi cally rejected the doctrine of third-party consent as it was inconsistent with its jurisprudence on fi rst-party consent. As a result, the court concluded that Cole did have a reasonable expectation of privacy and, therefore, that a search warrant was necessary. As the police conducted the search and seizure without a war- rant, it violated his s. 8 rights. Cole, however, was not out of the woods. Noting his diminished expectation of privacy and that the information on the hard drive is "all highly reliable and probative physical evidence, the admission of it under s. 24(2) of the Charter. Th e court held that the admission of the evidence, despite the violation of s. 8, would not bring the administra- tion of justice into disrepute and ordered a new trial. Th e impact of this decision will be diffi cult to assess. " the court allowed ingly provide computers for employees' exclusive use and that staff can and oſt en do use them away from the workplace. In this regard, it is common practice for em- ployees to use the computers for both work-related and personal reasons. Furthermore, as people store more data in the cloud and access it from both workplace and personal computers, the ownership of the device or the data, far from being determinative of the reasonable ex- pectation of privacy, becomes an increasingly unhelp- ful marker. It becomes a factor to be considered in the www.lawtimesnews.com Permitting at least a diminished reasonable expecta- tion of privacy on work or employer-owned comput- ers should give employers pause. When considered in conjunction with the recent Court of Appeal case creating a tort of intrusion upon seclusion, this case may well give rise to new areas of potential expos- ure. However, the competing interests of employers in preventing misuse of electronic data or employees' duties will have to be considered. But since the court specifi cally deferred the question of whether the actual act of searching or monitoring the computers by the employer contravened any privacy rights for another day, the fi nal chapter on this issue remains unwritten. Th e courts, therefore, will continue to struggle with the boundaries of appropriate expectations of privacy. Nonetheless, one thing is perfectly clear: the courts remain strongly opposed to the Orwellian future where privacy would be non-existent. LT Duncan Boswell practises corporate and commercial litigation at Gowling Lafl eur Henderson LLP.

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