Supreme Court of Canada finds there is a reasonable expectation of privacy in shared computer; warrantless seizure and search unreasonable.
Monday, January 07, 2019 - Filed in: Courts
"The accused shared a home with his common‑law spouse. Following charges of domestic assault against the accused, a no‑contact order was issued which prohibited the accused from visiting the home without his spouse’s prior, written and revocable consent. When the spouse contacted the accused’s probation officer to withdraw her consent for him to enter the home, she reported that she had found what she believed to be child pornography on the home computer which she shared with the accused. A police officer came to the family home without a warrant. The accused’s spouse allowed the officer to enter and signed a consent form authorizing him to take the computer, which was located in a shared space in the home. The police detained the computer without a warrant for more than four months before searching it. They also failed to report the seizure of the computer to a justice, despite the requirements of s. 489.1 of the Criminal Code . When the police finally obtained a warrant to search the computer, they found 140 images and 22 videos of child pornography. The accused was charged with possessing and accessing child pornography but applied to exclude the computer‑related evidence claiming that his right to be secure against unreasonable search or seizure pursuant to s. 8 of the Canadian Charter of Rights and Freedoms had been violated. The application judge agreed. Accordingly, he excluded the computer evidence under s. 24(2) of the Charter and the accused was acquitted. The Court of Appeal allowed the Crown’s appeal from the acquittal, set aside the exclusionary order and ordered a new trial."
The S.C.C. held (9:0, with two separate judges writing separate concurring reasons) that the appeal is allowed, the evidence excluded and the acquittal restored.
The S.C.C. held (9:0, with two separate judges writing separate concurring reasons) that the appeal is allowed, the evidence excluded and the acquittal restored.
Justice Karakatsanis wrote as follows (at paras. 2-4, 47, 56, 64-65, 67):
"Section 8 of the Charter protects all Canadians against unreasonable search and seizure. In assessing whether s. 8 has been infringed, courts consider whether an individual’s privacy interests must give way to the state’s interest in law enforcement. The challenge of s. 8 is that courts are most often called on to interpret its scope in cases, like this, where the police have found evidence that the claimant has engaged in criminal activity. Child pornography offences are serious and insidious, and there is a strong public interest in investigating and prosecuting them. However, in applying s. 8 , the question is not whether the claimant broke the law, but rather whether the police exceeded the limits of the state’s authority. The answer in this case impacts not only Reeves, but also the privacy rights of all Canadians in shared personal computers.
The judge hearing the Charter application concluded that the police infringed Reeves’ s. 8 Charter rights, and excluded the child pornography evidence under s. 24(2) (2015 ONCJ 724). Reeves was acquitted at trial. The Court of Appeal did not agree with the application judge that the police infringed s. 8 when they took the computer with the consent of Reeves’ spouse (2017 ONCA 365, 350 C.C.C. (3d) 1). It allowed the appeal, admitted the evidence, and ordered a new trial.
I agree with the application judge that the police infringed Reeves’ Charter rights when they took the computer from his home, and that the child pornography evidence should be excluded. Although the computer was shared, Reeves maintained a reasonable expectation of privacy in it. The consent of Reeves’ spouse did not nullify his reasonable expectation of privacy, or operate to waive his Charter rights in the computer. The warrantless seizure of the computer and the search of it without a valid warrant were unreasonable, and the admission of the child pornography evidence would bring the administration of justice into disrepute.
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In short, in light of the deeply intimate nature of information that can be found on a personal computer, Reeves’ subjective expectation of privacy was objectively reasonable. His spouse’s consent could not nullify his reasonable expectation of privacy in the computer data. Indeed, both the Crown and the Court of Appeal appear to have recognized that Reeves had a reasonable (although diminished) expectation of privacy. While Reeves’ reasonable expectation of privacy in the computer was limited, given that he shared control over the computer with his spouse, it still suffices to trigger the protection of s. 8 of the Charter (see Buhay, at para. 22). Indeed, “[a] reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter ” (Cole, at para. 9).
...the taking of the computer without Reeves’ consent interfered with his reasonable expectation of privacy and thus constituted a seizure within the meaning of the Charter (Cole, at para. 59). A warrantless seizure is presumptively unreasonable, and the burden falls to the Crown to rebut this presumption (Hunter, at p. 161; Monney, at para. 29). Indeed, because someone is always likely to have a reasonable expectation of privacy in a personal computer, the taking of a personal computer without a warrant and without valid consent will constitute a presumptively unreasonable seizure. The Crown has not endeavoured to rebut the presumption in this case, as it relies on Gravelle’s consent to show that no seizure occurred.
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Additionally, as in Morelli, the ITO upon which the search warrant was obtained was “[a]t best . . . improvidently and carelessly drafted” (para. 100). The application judge concluded that the computer search breached the Charter because the ITO reflected “‘a goal-oriented, selective presentation of the facts’ that resulted in an ‘unfair, unbalanced and misleading’ portrayal of the applicant” and was insufficient to have justified granting the warrant (para. 38).
In short, there were serious Charter breaches throughout the investigative process. Overall, the police conduct in this case undermined “public confidence in the rule of law” and favours exclusion of the evidence (Grant, at para. 73).
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With respect to society’s interest in the adjudication of this case on its merits, I agree with the application judge that it was strong. The unconstitutional search and seizure of the computer revealed reliable evidence that was important to the prosecution’s case (see Grant, at paras. 81 and 83). Further, as the application judge and the Court of Appeal both noted, the alleged offences were serious. Child pornography offences are “particularly insidious” (Morelli, at para. 8). Cases in which a court must decide whether to exclude probative evidence of a serious crime are always challenging. However, the seriousness of the offence “has the potential to cut both ways” in assessing whether evidence should be excluded (Grant, at para. 84; see also Paterson, at para. 55). Indeed, “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach” (Grant, at para. 84)."
Note: The summary and body are drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.