In an important case for expectations of privacy in personal data, the Supreme Court of Canada has allowed the appeal of an Ontario man whose shared computer was seized and searched without his consent.
The question the Supreme Court was seized with concerned the impact of the estranged couple’s joint residence and the fact that consent was given by only one of the co-residents to search and seize an electronic device, and its corresponding affect on privacy.
“When 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 Andromache Karakatsanis wrote, with Chief Justice Richard Wagner and Justices Rosalie Abella, Clément Gascon, Russell Brown, Malcolm Rowe and Sheilah Martin concurring.
“Thus, I disagree with the [Ontario] Court of Appeal’s assertion that “[s]eizing the computer did not interfere with Reeves’ heightened expectation of privacy in its informational content; it did not imperil any of his legitimate interests, beyond mere property rights” (para. 61),” Justice Karakatsanis wrote.
“Clearly, the police were not after the physical device (to collect fingerprints on it, for example), but rather sought to preserve and permit access to the data it contained. To focus exclusively on the property rights at issue (that is, on Reeves’ interest in the computer) neglects the important privacy rights in the data that are also engaged by the seizure.”
Following charges of domestic assault against the accused, a no‑contact order had been issued that prohibited him from visiting the marital home without his spouse’s prior, written and revocable consent. When the spouse contacted the accused’s probation officer to withdraw that consent, she reported that she had found what she believed to be child pornography on the home computer she shared with the accused. A police officer came to the home without a warrant, and the accused’s spouse allowed him to enter and signed a consent form authorizing him to take the computer, 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 multiple images and videos of child pornography on it.
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 and 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.
At issue for the majority of the Supreme Court was that “[a]lthough a seizure of a computer may be less intrusive than a search of its contents, both engage important privacy interests when the purpose of the seizure is to gain access to the data on the computer. Privacy includes ‘control over, access to and use of information’,” Justice Karakatsanis wrote.
“Thus, the personal or confidential nature of the data that is preserved and potentially available to police through the seizure of the computer is relevant in determining whether the claimant has a reasonable expectation of privacy in it. … By choosing to share a computer with others, people do not relinquish their right to be protected from the unreasonable seizure of it.”
The majority did not express a view on whether the police officer’s entry into the couple’s home was lawful. In concurring reasons, Justice Michael Moldaver allowed that police may have had authority to enter the shared residence under common law, but did not make a determinative finding.
All nine judges were in agreement that the computer evidence should be excluded under s. 24.2 of the Charter, which says evidence “that was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter” should be excluded. However, Justice Suzanne Côté disagreed with the majority “that the issue of lawfulness of entry shouldn’t be addressed” in the case, says Jill Presser of Presser Barristers in Toronto, who represented the intervener Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic in the case.
“Eight of nine [justices] agreed that the seizure of the computer based on the spouse’s consent was a violation of s. 8” of the Charter, and “that a third party shouldn’t be able to consent to seizure or search of a shared computer,” as the Samuelson-Glushko Clinic had argued, Presser told Legal Feeds.
However, Brad Greenshields of Greenspan Partners LLP in Toronto, who represented the appellant in the case, says: “Justice Côté goes further than Justice Moldaver, and essentially accepted the Crown’s position that a person who shares a home with others does not have … a reasonable expectation that a co-occupant, like a spouse, could not lawfully allow police to enter a home.”
The majority’s answer to Justice Côté’s reasons, Presser says, is that “when you seize a digital device you deprive all the people who have rights to use that device of their ability to access, use, and control intimate data contained on that device.”
The majority referred to its own decision in R. v. Vu, 2013 SCC 60,  3 S.C.R. 657, which established a framework for the legal requirements for computer searches. In that decision, the Court had ”distinguished computers from other types of objects by requiring specific judicial authorization to search computers that are found in places the police are otherwise permitted to search,” Justice Karakatsanis noted in her reasons.
“Vu established a constitutional imperative for specific judicial authorization to search the content of computers,” Greenshields says. “Vu recognized that computers, because of the special privacy issues they raise, … are unlike any other ordinary container” that police might seize, such as a briefcase, box, or filing cabinet.
“The Reeves decision extends that [Vu] rule … and establishes a presumptive rule that prior judicial authorization is required to seize a computer from a home, even if someone who shares that computer or home is inclined to consent,” he says, adding that the decision is “a very positive judgment for s. 8 rights of all Canadians going forward.”
The court also noted, says Presser, that a majority of Canadians, especially in less wealthy households, may share electronic devices such as computers, but that doesn’t mean “that one person … should be able to defeat the other party’s privacy interest in the shared device. Our digital footprint remains our own.”
The most obvious implication of today’s decision is that no one can extinguish somebody else’s reasonable expectation of privacy in electronic devices, she says. But the decision also has larger implications in the age of the “internet of things,” in which many household devices are “internet-enabled and communicating back to a network what we’re doing in the privacy of our own homes,” via smart phones, monitoring of heat and light, and sophisticated cable TV programming devices.
“They’re collecting massive data about us,” Presser notes. “Going forward, as more and more of our devices are collecting information, this assertion of privacy assumes greater and greater significance for the privacy of Canadians.“