In R. v. Reeves, the Supreme Court of Canada recently considered the extent of a person’s privacy rights in a shared computer. This was a criminal case that centered on whether the police had properly seized the shared computer.
Mr. Reeves shared a home with his common law spouse. Following domestic assault charges against him, a no contact order was issued. It prohibited him from visiting the home without his spouse’s consent.
When the spouse contacted Mr. Reeves’ probation officer to withdraw her consent for him to enter the home, she advised that she had found evidence of a serious crime on the home computer, which she shared with Mr. Reeves.
A police officer came to the family home, without a warrant. The 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 held the computer without a warrant for more than four months before searching it.
When they finally obtained a warrant to search it, they found evidence of a serious crime relating to minors.
Mr. Reeves was charged. He applied to exclude the evidence found on the computer because the police had seized it without a warrant. He argued that this violated his right to be secure against unreasonable search or seizure under s. 8 of the Canadian Charter of Rights and Freedoms.
The first judge agreed. The evidence from the computer was excluded. Mr. Reeves was acquitted. The Court of Appeal disagreed
The Supreme Court of Canada disagreed with the Court of Appeal. It unanimously held that the evidence was to be excluded and the acquittal restored.
The Court acknowledged that offences regarding minors are “serious and insidious,” and that “there is a strong public interest in investigating and prosecuting” such crimes. However, it considered that the issue extended beyond this case.
The first question was not whether Mr. Reeves broke the law, but rather whether the police exceeded their authority. The answer to this question, the Court said, affects the privacy rights of all Canadians in shared personal computers.
The Court stated that taking a personal computer without a warrant and without valid consent is presumed to be an unreasonable seizure. The burden is then on the Crown to rebut this presumption. Instead of doing so, in this case the Crown sought to rely on the spouse’s consent.
Sharing a computer does not mean relinquishing one’s right to be protected from unreasonable seizure of it—“[s]hared control does not mean no control.” Despite the no contact order, Mr. Reeves still exercised a level of control over the computer.
Although he had a diminished expectation of privacy because he used a shared computer, he still had an expectation of privacy sufficient to invoke the protection of section 8 of the Charter. Seizing it without a warrant violated those rights.
The Court also commented that the search warrant which was obtained after the seizure was “at best… improvidently and carelessly drafted.”
It acknowledged that there is a “strong” societal interest in proceeding with cases of this nature, the evidence was reliable and important, and the alleged offences were serious.
However, it stated that the seriousness of the offence “has the potential to cut both ways”. While there was a “heightened interest in” not throwing out serious cases based on what some may call a ‘technicality’, where the offence charged is serious, there is also a “vital” societal interest in “having a justice system that is above reproach.”
As a parent, one might want to have seen the evidence from the computer admitted and the accused convicted. But if you are ever accused of committing a crime, surely you would want to know that our judicial system scrutinizes the admissibility of evidence against you.
Many Canadians might feel that we live in an age of diminished privacy, due to social media, cell phone cameras and big technology algorithms. It is reassuring that the Supreme Court of Canada considers our privacy rights to be of great importance.
This is a modified version of an article that is to appear in the Kelowna Daily Courier on March 8, 2019, the Capital News on or about March 9, 2019, and other online publications. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or info@inspirelaw.ca.
