Canada: Sharing Computers And Sharing Space: Privacy Interests Persist

Privacy and Cybersecurity Bulletin
Last Updated: March 14 2019
Article by Fasken Martineau

Overview

Many people share computers, either within their home or at work. What control do they have over these computers, which they may not even own? Do they still have a privacy interest in the computer contents? The Supreme Court of Canada tackled this important question in its recent R. v Reeves decision, basically affirming the strong privacy interest of a person in his or her own computer contents, even though the computer may be used by several people and physical access is through space shared with other individuals.

Facts

Reeves, the accused, shared a home and a computer with his spouse. However, his spouse obtained a no-contact order against him following charges of domestic assault. When contacting the police to withdraw her consent for him entering the home, she reported she believed she had found child pornography on the home computer. A police officer subsequently visited the home without a warrant and obtained her written permission to carry away the computer.

The computer was with the police for more than four months and was not reported to a justice as the Criminal Code requires. Finally, a warrant was obtained to search the computer and the police found extensive images and videos of child pornography.

At trial, the accused pleaded that the computer-based evidence against him had been illegally obtained and violated his privacy rights based on s. 8 of the Canadian Charter of Rights and Freedoms which guarantees against unreasonable search and seizure.

The Supreme Court of Canada agreed and the accused was acquitted.

Decision

The Supreme Court ruled that the evidence gathered should be excluded and that the accused be acquitted.

The majority of the Supreme Court held that the accused had maintained his reasonable expectation of privacy in his shared computer, even though his spouse had given her consent.

Taking into account the totality of the circumstances, the Court stated that the informational content of the computer which the accused had used was likely to contain his most personal and intimate thoughts and therefore attracted a strong privacy interest. Another person who shared the computer could not override this interest by handing over the computer to the police who had not obtained a warrant.

The Court referred to a previous case involving a computer in which the user was not the owner. In R v Cole, decided in 2014, it had affirmed that what an individual writes, searches and downloads on a computer he or she uses is of such a personal nature that it comprises part of the core biographical information which is worthy of the strongest constitutional protection from unauthorized state seizure or surveillance. The fact that the computer in question was owned by a third party did not modify the privacy interest of the computer user.

Because a person is always likely to have a reasonable expectation of privacy in a computer, its seizure by the state without a warrant and without consent is likely to be contrary to the protection afforded by s. 8 of the Charter.

Justice Michael Moldaver offered a separate opinion in which he listed the circumstances at common law in which the police may enter a home without a warrant. Acknowledging the reality of shared dwellings and shared common spaces for many people today, he wrote that in order to carry out their duties, police may have to intrude on a co-resident's reasonable expectation of privacy. He sets out the conditions for them to do so with minimal interference to the privacy of others.

The lawfulness of entry into the home and the circumstances of the police seizure of the computer was also addressed separately by Justice Suzanne Côté. She reasoned that his spouse, who shared the home, had rights of access and control over the common areas of the home and could lawfully allow the police to enter, especially in the context where an order forbid the entry of the accused. The accused shared joint ownership and control of the computer with his spouse and therefore had no reasonable expectation that she could not consent to it being taken away by the police. The police had not searched it before obtaining a warrant. However, the failure to report the detention of the computer by the police meant the evidence should be excluded nonetheless.

Lessons Learned

Ownership and control of computers have little, if any, effect on the constitutional privacy protection of their contents.

Even shared computers in common residential spaces cannot be handed over to the police without either consent of the person involved or a judicial warrant.

Today, many people share computers in work space, community space and within their dwelling places. Employers and owners of computers used by third parties should have policies making clear their expectations about the use of computers and the consequences of using them for illegal activities.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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