Consent of one spouse cannot authorise the seizure of a computer containing private data about the other.

The Supreme Court of Canada has concluded that one spouse has a sufficient reasonable expectation of privacy in a jointly-used home computer that the other spouse cannot consent even to the seizure of that computer, with its decision in . This conclusion overturns the decision of the Ontario Court of Appeal, which had held that the spouse could consent on her own behalf to the taking of the computer, which would have the effect of the police lawfully taking it: see the discussion in the CanTech newsletter of May 24, 2017.

Reeves shared a home with his common law spouse. They were separated in 2011 and Reeves was subject to a no-contact order after being charged with domestic assault against his spouse. For Reeves to visit the home, he needed to obtain his spouse’s prior, written and revocable consent, which she did in fact revoke in 2012. At that time, his spouse called Reeves’ probation officer to withdraw her consent, and also reported that she had earlier found what she believed was child pornography on the shared home computer (used by both spouses) in 2011. After she reported what she had found, a police officer went to the home without a warrant, and he later testified that he did not believe he had grounds at that time to obtain a warrant. The spouse allowed the officer to enter the house and signed a consent form allowing the officer to take the computer from a shared space in the home. At the time that the computer was taken, Reeves was in police custody on unrelated charges. The police detained the computer for four months during which they neither searched the computer nor reported it to a justice as required by s 489.1 of the Code. In February 2013 the police obtained a warrant and searched the computer finding images and videos that constituted child pornography, at which point Reeves was arrested and charged.

The trial judge had found a number of Charter violations: the entry into the home, the seizure of the computer, the eventual search of it under the warrant (which was found to have been improperly issued) and the failure to file a report with a justice about the seizure of the computer. Because of this collection of violations, the trial judge had excluded the evidence. The Ontario Court of Appeal agreed that there were some Charter violations in the case, but disagreed that either the entry or the seizure violated the accused’s Charter rights, and as a result did not exclude the evidence. Those two issues went to the Supreme Court, which rendered a majority decision only on the second: eight of the nine members concluded that the seizure of the computer was, in fact, a violation of the accused’s section 8 right to be free from unreasonable search and seizure, and that that was sufficient to conclude that the evidence should be excluded and therefore to restore the decision at trial. (Seven of eight judges left the question of whether one person could consent to the entry by the police into areas commonly-held with other people to be discussed in a case which turned on that issue. Justice Moldaver, writing only for himself, concurred with the majority reasoning on the seizure issue while also offered a tentative method of analysis of the entry issue, but left a final determination of the point for another day. Justice Côté, writing only for herself, concluded that the issue of the entry into the premises should be addressed, and was not unlawful, and indeed that the seizure was lawful. However, she also concurred in the majority result that the evidence should be excluded.)

The key to the majority’s reasoning rested on their discussion of reasonable expectation of privacy in the context of a computer. In Reeves, the Court continues its sophisticated “large and liberal” understanding of privacy in the technology context. That issue of reasonable expectation of privacy, which the Court again stresses must be evaluated on a normative basis, rests on consideration of four factors: (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. As has increasingly become the case recently (as for example in R v Marakah, discussed in the CanTech newsletter of December 21, 2017) exactly how the first consideration, the subject matter, is defined has a major impact on the rest of the analysis.

The Supreme Court’s point was that the subject matter of this seizure was not merely the computer as a physical item, but “ultimately the data it contained about Reeves’ usage, including the files he accessed, saved and deleted” (para 30). They noted that “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 preservedand thus subject to potential future state inspection” (para 30). They carried on to say

[31] Thus, I disagree with the 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). 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.

Once the subject matter was defined in that way it was easy for the Court to conclude that the accused had a subjective direct interest in that data, which settled the second and third considerations, and left only whether the privacy interest was objectively reasonable. The Court answered that question affirmatively, as it has on many other occasions relating to electronic data:

[34] Personal computers contain highly private information. Indeed, “[c]omputers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities” (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 105; see also Vu, at paras. 40-41; Cole, at paras. 3 and 47-48). Computers act as portals — providing access to information stored in many different locations (Vu, at para. 44; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at paras. 131-32). They “contain information that is automatically generated, often unbeknownst to the user” (Vu, at para. 42). They retain information that the user may think has been deleted (Vu, at para. 43). By seizing the computer, the police deprived Reeves of control over this highly private information, including the opportunity to delete it. They also obtained the means through which to access this information. Indeed, these are the reasons why the police seized the computer.

The Court acknowledged that control is a relevant consideration, and that the shared control over this computer meant that Reeves privacy interest was diminished, but nonetheless it was not extinguished.

Once they had reached that conclusion, it was relatively easy for the Court, relying on previous case law, to conclude that the seizure based only on the consent of Reeves’ spouse was a section 8 violation. To say that Reeves had to take the risk that his spouse, who also had a privacy interest in the computer, might give it to the police would be to substitute a risk analysis for the correct normative approach: as in R v Duarte or Marakah, the existence of such a risk does not mean the accused does not have a privacy interest to be protected. They noted in particular that to find otherwise might “disproportionately impact the privacy rights of low income individuals, who may be more likely to share a home computer” (para 44). Similarly, it is well-established that one person cannot waive another person’s Charter rights, and so to allow the spouse’s consent here to mean that Reeves’ rights were not infringed would be inconsistent with R v Cole.

The result was that the seizure of Reeves’ computer was an interference with his reasonable expectation of privacy for which no lawful authority existed, and therefore was a section 8 breach. More generally, the Court added what can be seen as an addendum to the longstanding general rule that a warrantless search is prima facie unreasonable:

[56] …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.