When Law Gets Confusing

Quoting Mr. Bumble of Oliver Twist fame on matters of law is not one of the wiser things to do. He was a bit of a nasty piece of work really when he ran Charles Dickens’s orphanage but he did make a valid point one day when confronted with his past record of bad behavior with relevant law quoted to back the charges. He didn’t challenge the law but confidently retorted: “If the law supposes that – the law is a ass, a idiot.”

And, alas, sometimes it is when law makers strive to find clear cut legal solutions for complex problems.

A few weeks ago the popular press reported a court case involving major thefts from residential and commercial properties. A search of the accuseds’ residence had uncovered piles of loot from burglaries. Computers, laptop computers, smart phones, IPads, electronic gadgets of all kinds – a regular Aladdin’s cave.

A guilty finding seemed sure until it was revealed that the search and discovery had been mishandled and conducted in violation of clearly stated law designed to provide protection to all citizens from such unauthorized actions.

The judge ruled the search illegal and stated the “discoveries” could not be used in evidence. Case closed, the accused walked.

It’s a good law. It means that before the men in uniform can come barging into homes they need at very least a piece of paper called a search warrant obtained from a judge – after they have provided enough evidence to convince him or her the search is justified.

But I believe it flawed law when, because of an error or carelessness on the part of investigating officers, a person with a room full of known to be stolen goods can walk free of punishment. Seems to me that the law officers should be publicly chastised and their police force heavily fined for failing to follow established, sensible, protective procedures – and the guy caught with a truckload of stolen goods should get no less than a heavy fine or jail..

As things stand Mr. Bumble makes a case, as he does when his philosophy is applied to less colourful but more confusing and possibly more important issues of laws governing human rights and in particular rights of privacy.

We had a recent kerfuffle in Saanich regarding the municipal deployment of surveillance gadgets attached to office computers to check on employees. Council regarded the checks as “security measures.” Information and Privacy Commissioner Elizabeth Denham took a look at the situation and issued a strong opinion that Council’s position was untenable; that it should immediately disable the most intrusive surveillance tools and set about understanding more clearly what The Freedom of Information and Privacy Act is all about.

She further suggested Council implement a comprehensive privacy management program “and provide training to all employees in relation to all requirements of the Act.” But she doesn’t offer much guidance on how to control the use by employees of government or company owned computers. She simply states that public bodies now commonly allow employees to use workplace systems “for some personal use” and that when they do “employees are afforded certain privacy rights related to that personal use.” Those rights are protected by law.

In October 2012 the Supreme Court of Canada ruled in favour of those privacy rights in the workplace when it comes to state (government) involvement. But writing on the judgment for Gowlings Knowledge Centre Bettina Burgess wrote: ”Regrettably the SCC declined the invitation to make any finding with respect to the private employers  right to monitor employee computer use……Although Canadians have a reasonable right to privacy on their personal computers, the question has remained open whether that right extends to personal information on their employers computer.”

In other words it’s a bit of mess down there in the swamp created by the wonderful world in which employees can dabble on their workplace computers, safe in the knowledge that the boss isn’t allowed to monitor their computer use unless serious misconduct is suspected – and the employee is warned a check is being made.

Sounds a little counter-productive to me and motherhood defence of “the right to privacy”.  The law is not always an ass or an idiot but sometime in its anxiety to protect us it  does try to smother us as we sleep.

https://gowlings.com is worth a visit, or Google – Privacy Rights on Company Computers.

One comment

  1. I agree “it’s a bit of mess down there in the swamp.” I read about employees watching porn on company computers, apparently confident they won’t be detected or reprimanded. They’re not only abusing their employer’s equipment, they’re goldbricking!

    But how is the boss supposed to discover such misconduct unless there is some unannounced espionage?

    There has to be a limit to privacy when it comes to behaviour in the public arena. A workplace is not a bedroom.

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