Privacy Interests Are Not “Trashed” by Deleting Files

In the recent decision of the British Columbia Court of Appeal in R. v. McNeice, [2013] B.C.C.A. 98, it was held that an employee who had deleted files on his computer nonetheless maintained a privacy interest requiring the police to obtain a search warrant in order to search and seize those files. The Court generally held that deleting computer files is “consistent with an intent to conceal, and thus to maintain a privacy interest”.  Although the Court found that a warrant should have been obtained on the facts of the case before it, it went on to hold that excluding the evidence in this criminal case would bring the administration of justice into disrepute. The case serves, however, as a reminder to both employers and police services of employees’ broad privacy interests.  Employers should ensure that adequate policies are implemented that clearly delineate the permitted uses of computer resources and the ownership of computer files before they take steps to release computer information, which arguably belongs to its employees, to third parties.