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
