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Andromache Karakatsanis

SCC rules people can’t waive privacy rights of others in the digital devices they share

Thursday, December 13, 2018 @ 3:19 PM | By Cristin Schmitz

Last Updated: Friday, December 14, 2018 @ 9:55 AM

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The Supreme Court has ruled 9-0 that police violated an Ontario man’s Charter-protected right to be free from unreasonable search or seizure when they warrantlessly seized the home computer he shared with his spouse, with only her permission and not his.

On Dec. 13, the top court overturned the Ontario Court of Appeal below, excluded from evidence dozens of child pornography images and videos police found on the home computer they seized without a warrant, and restored the appellant Thomas Reeves’ acquittal at first instance on child pornography charges: R. v. Reeves 2018 SCC 56.

Reeves marks the Supreme Court’s first pronouncement on whether a third party (in this case, the accused’s spouse) with a property or possessory interest in an electronic device — here a shared computer — can consent to state seizure of that device and thereby to the digital information within — thus effectively waiving the accused’s s. 8 Charter-guaranteed right to be free from unreasonable search or seizure.

The court turned thumbs down on warrantless so-called “third-party consent” seizures.

Andromache Karakatsanis

Justice Andromache Karakatsanis

“While the accused’s spouse undoubtedly had constitutionally protected privacy interests in the shared computer, this did not entitle her to relinquish the accused’s constitutional right to be left alone,” Justice Andromache Karakatsanis ruled in her lead opinion, which was backed by all nine judges on this point.

“Although the computer was shared, the accused maintained a reasonable expectation of privacy in it,” she held. “The consent of the accused’s 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” — and thus should be excluded under s. 24(2) of the Charter.

Justice Karakatsanis emphasized that “by choosing to share their computers with friends and family, Canadians are not required to give up their Charter protection from state interference in their private lives, and to accept that their friends and family can unilaterally authorize police to take things that they share.”

The judge held that “in light of the deeply intimate nature of information that can be found on a personal computer, the accused’s subjective expectation of privacy in this case was objectively reasonable. ... His spouse’s consent could not nullify his reasonable expectation of privacy in the computer data. 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.”

Justice Karakatsanis went on to say that “while it is reasonable to ask citizens to bear the risk that a co‑user of their shared computer may access their data on it, and even perhaps discuss this data with the police, it is not reasonable to ask them to bear the risk that the co‑user could consent to the police taking this computer.”

Jill Presser

Jill Presser, Presser Barristers

Jill Presser of Presser Barristers in Toronto, co-counsel for the intervener Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC), told The Lawyer’s Daily Reeves is important because “it says that an individual's significant privacy interest in household electronic information is not extinguished when they, either knowingly or unknowingly, share access to that information with a cohabitant or spouse.”

She pointed out that when individuals cohabit, they often have “routine access to intimate electronic information about each other that is at the heart of the biographical core of one’s private life. This shared access may occur unbeknownst to one or both parties. Due to the uneven nature of computer literacy, electronic devices are full of cyberspaces that are meaningfully expected to be private, but which are jointly accessible with ease.”

Presser elaborated, “whether sharing a computer, a ‘smart’ home device, or a home wireless network, individuals often lack appreciation of the scope of their digital footprint, and the ease with which it may be accessed by other individuals living under the same roof and sharing the same home network.”

In her view, Reeves stands for the proposition “that we have a reasonable expectation of privacy in our own data and information, and that our cohabitants cannot extinguish that expectation of privacy on our behalf.”

Daniel Brown

Daniel Brown, Toronto criminal lawyer

Toronto criminal lawyer Daniel Brown told The Lawyer’s Daily the judgment clarifies that the police can’t search or seize a person’s computer or digital data without the person’s consent or a warrant. “The fact that another co-user of the computer has granted consent for the police to search and seize the information is not sufficient to circumvent this requirement.”

Brown noted it remains unresolved whether police can lawfully enter a private residence without the consent of both owners or occupants to conduct a warrantless search. “This will be decided in a future SCC case that specifically turns on this issue.”

CIPPIC intervened in the appeal to support Canadians’ reasonable expectation of privacy even in electronic devices that are shared. “On the ground, this is important because many Canadian families cannot afford to have more than one computer or tablet, and all family members share it,” Presser emphasized. “But the lived experience of Canadians is that they expect their own electronic data to be private, even when they are sharing the device with others. The Reeves decision is very privacy-protective for Canadians because it reflects and protects everyone’s own digital information, even when they share the devices with others.”

Justice Karakatsanis’s ruling on third-party consent seizures in Reeves is congruent with the Supreme Court’s decision on third-party consent searches in an earlier child pornography case, R. v. Cole 2012 SCC 53, where the court held that at least where employees’ personal use of work devices is permitted or reasonably expected, they may have a reasonable expectation of some privacy in the personal information contained in those devices.

In their separate concurring opinions in Reeves, Justices Michael Moldaver and Suzanne Côté additionally addressed the implications of police entering a shared home’s common areas with the consent of only one of the cohabitants. But Justice Karakatsanis declined to do so, stating it was unnecessary to decide in this case whether the entry of police into the home constituted a separate violation of the accused’s s. 8 Charter rights.

“Whether police entry into a shared home with the consent of one resident violates the Charter raises complex questions that require a considered response,” she wrote. “They are best answered in a case that directly turns on the issue, with the benefit of full submissions.”

The case arose in October 2012 when the accused’s common law spouse of 20 years contacted his probation officer to withdraw her consent for him to enter the home they shared with their two daughters (there was a no-contact order as a result of a domestic assault). She also told the probation officer that she had found what she believed to be child pornography on the home computer which she co-owned and shared with the accused.

When police arrived to investigate, she allowed an 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 kept 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, contrary to the requirements of s. 489.1  of the Criminal Code. When they did get a warrant to search the computer, they found 140 images and 22 videos of child pornography. Reeves was charged with possessing and accessing child pornography.

He successfully applied at first instance to exclude the computer‑related evidence under s. 24(2) of the Charter, on the basis that his Charter right to be secure against unreasonable search or seizure had been violated. The Crown’s case collapsed without the excluded evidence, and he was acquitted. The Court of Appeal allowed the Crown’s appeal, set aside the exclusion order and ordered a new trial.

In her judgment, Justice Karakatsanis noted that there is a presumption that the taking of an item by the police without a warrant violates s. 8 of the Charter, unless the claimant has no reasonable expectation of privacy in that item or has waived his Charter rights.

She stipulated that in assessing whether a claimant has a reasonable expectation of privacy in the taken item, courts must consider the totality of the circumstances. In particular, courts must determine (1) the subject matter of the alleged seizure; (2) whether the claimant had a direct interest in the subject matter; (3) whether the claimant had a subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable.

Here Reeves did have a reasonable expectation of privacy in the shared computer, she held. The subject matter of the seizure was the computer, and ultimately the data it contained about the accused’s usage, including the files he accessed, saved and deleted. “When the police seize a computer, they not only deprive individuals of control over intimate data in which they have a reasonable expectation of privacy, they also ensure that such data remains preserved and thus subject to potential future state inspection,” Justice Karakatsanis observed. “Thus, seizing the computer interfered with the accused’s expectation of privacy in its informational content. The accused undoubtedly had a direct interest and subjective expectation of privacy in the computer and the data it contained, as he used the computer and stored personal data on it. Finally, the accused’s subjective expectation of privacy was objectively reasonable. While control is relevant in assessing whether a subjective expectation of privacy is objectively reasonable, it is not an absolute indicator of a reasonable expectation of privacy, nor is a lack of control fatal to a privacy interest.”

While the accused’s control over the computer was limited as compared to that of someone who is the sole user of a personal computer, Justice Karakatsanis commented that “shared control does not mean no control.”

“By choosing to share a computer with others, people do not relinquish their right to be protected from the unreasonable seizure of it by the state,” she said. “Similarly, ownership is relevant, but not determinative, in assessing whether a subjective expectation of privacy is objectively reasonable. The joint ownership of the computer does not render the accused’s subjective expectation of privacy objectively unreasonable.”

Justice Karakatsanis rejected the Crown’s argument that there is no seizure, within the meaning of s. 8 of the Charter, when a party with an equal and overlapping privacy interest provides consent. She said this would effectively permit the consenting party to waive the privacy rights of the other parties.

Justice Karakatsanis went on to hold that the Charter-infringing state conduct was serious. “The police service’s specialized cyber‑crime unit should have been aware of the unique and heightened privacy interests in computers and should have known that a third party cannot waive another party’s Charter  rights,” she admonished. “Because there were multiple serious Charter breaches throughout the investigative process, the police conduct undermined public confidence in the rule of law. While society’s interest in the adjudication of this case on its merits was strong and the alleged offences were serious, given the seriousness of the state conduct and its impact on the accused’s Charter ‑protected interests, the admission of the evidence would bring the administration of justice into disrepute,” she concluded.

The Ontario Ministry of the Attorney General declined comment on the judgment, other than to say the Crown is carefully reviewing it.

In its brief to the Supreme Court, the Ontario Crown argued it would be “bad criminal law policy” to create a new constitutional rule requiring that when people share their private places and things, as most Canadians do, a cohabitant has no right to allow police access without the unanimous agreement of all other cohabitants.

“The Charter of Rights and Freedoms should encourage Canadians to report crime and assist the police,” urged the Crown. “The appellant’s position would frustrate this objective and hamper criminal investigations. It would also significantly undermine the rights of innocent members of the public — including vulnerable victims of crime — who have a legitimate interest in the police acting on their consent to access their private places and things, including those that they share with others.”

Photo of Justice Andromache Karakatsanis by David Balfour Photography