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Date:
2016.09.29

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THE EMPLOYERS' EDGE

Expectation of Privacy is Lost once Text Messages are Received

Practice Areas: Workplace Investigations

In 2012 the Supreme Court of Canada released the decision R. v. Cole that found employees have a reasonable expectation of privacy with respect to the contents of work related computers and police must obtain a warrant to seize and search these items. However, the Court also found that employers have the right to monitor the use and contents of work issued computer equipment. The case was from the criminal realm, but the impact on employment law was clear. In a recent decision, R. v. Marakah, the Ontario Court of Appeal again tackles the issue of privacy in the criminal law context, but the decision may boost an employer’s ability to monitor and rely on received text messages.

Nour Marakah (“Marakah”) was convicted of multiple firearms offences in Ontario’s Superior Court of Justice. At trial there were a number of incriminating text messages that Marakah sent to another individual (“Winchester”). The incriminating messages were obtained from Winchester’s phone by Police and it was ruled that Marakah did not have an expectation of privacy with respect to text messages once received by the recipient and, therefore, did not have standing to challenge the search of the recipient’s phone. Marakah appealed this pre-trial finding as well as the convictions.

The Court of Appeal confirmed the prior ruling in a majority 2-1 decision. The Court of Appeal agreed with the trial judge that an accused will only be granted standing to challenge a search or seizure, pursuant to Section 8 of the Charter, when they have a reasonable expectation of privacy. In the criminal context, the question of whether an individual has a reasonable expectation of privacy is determined on a case by case basis considering the totality of the circumstances. The circumstances to consider are succinctly set out in a Supreme Court decision, R. v. Edwards, and cited in R. v. Cole. These circumstances include:

  1. an examination of the subject matter of the alleged search;
  2. a determination as to whether the claimant had a direct interest in the subject matter;
  3. an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and
  4. an assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.

The trial judge’s decision largely focused on whether the accused’s subjective expectation of privacy was objectively reasonable. The Court of Appeal agreed with the findings at trial and similarly focused on the fact that Marakah did not own or have any control over Winchester’s phone, and no agreement of confidentiality existed between the parties. Therefore Marakah did not have an objectively reasonable expectation of privacy and lacked standing to challenge the search and seizure of Winchester’s phone.

This case did not involve employer issued equipment such as the computer in R. v. Cole but it does raise the question of what level of privacy a person can reasonably expect when sending text messages. Employers must constantly grapple with the issue of privacy and how far they may reach when investigating issues of workplace harassment, workplace violence, the disclosure of confidential information, or dissemination of material offensive in the workplace. R. v. Cole determined that employers have a legitimate right to monitor the use employer issued equipment. In that instance a teacher’s work issued computer was found to contain pornographic material involving a student. It’s possible that the decision in R. v. Marakah will grant an employer increased ability to monitor sent text messages, perhaps obtained from a non-work issued phone. An employer could arguably utilize text messages sent from a former or current employee, whether received on work issued equipment or shared by another individual. This issue arises often after an employment relationship is severed but the former employee maintains relationships with current employees. The Court in R. v. Marakah determined that text messages, once received, are outside of the control of the sender and an objectively reasonable expectation of privacy does not exist. Therefore, information shared over test messages may be useful to an employer in a case where a former employee has breached a confidentiality agreement or restrictive covenant and communicated this via text message.

The above case may amount to a helpful tool for employers when investigating workplace issues, but it is too early to tell. As mentioned above the case was not heard within the context of an employment relationship and the principles have not yet been applied to these circumstances by any court. However, legal fields rarely exist in silos and a well-articulated principle of privacy in the criminal realm may be found to apply within an employment or labour context. Marakah has appealed the decision to the Supreme Court of Canada and CCP will provide an update regarding the outcome and any potential impact on employers.

If you are unsure how to appropriately balance your rights as an employer with the privacy rights of current and former employees, click here for a list CCP lawyers that can assist you.

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