Let’s read this important Supreme Court privacy case from last year!

So I must have had a busy December or something? I guess I was grading papers and getting drunk. ANYWAY, December brought an important privacy & computer & internet case from the Supreme Court, so before it gets way too far in the past, let’s take a look!

The case is R v. Reeves, and it’s about… child pornography. Oh fuck not again. The Supreme Court’s other big important case about privacy & computer & internet was also about pornography, not adult pornography like dosexvideo.com but illegal child pornography. That one was R. v. Spencer, and I wrote about it with the provocative title “Thank the child pornographers for your internet rights to privacy. Then lock them up.”. I should have just repeated that title again.

The facts of Reeves are pretty simple, but are important to recite in detail. Reeves was kicked out of his house he shared with his common-law spouse after he was accused of domestic violence. Lovely guy! The common-law spouse had found what appeared to be child pornography on a computer in the house. When she called Reeves’ probation officer (again, lovely guy) to complain some more about him and get him banned from entering the house, she told him about the child pornography. A police officer later showed up at her place to check that it was child pornography and not legal adult pornography.

The officer, however, did not have a warrant when he showed up (red flag!), but the spouse let him in anyway. The computer was in the basement, a shared space (foreshadowing!), and was owned by both of them (more foreshadowing!). The common-law spouse then said “take the computer, and here I will sign your form saying it’s all cool.” The officer took the computer.

The cops then sat on the computer (not literally) for four months, without telling anyone they had seized it (as they were required to). Finally they got a warrant to search it, and lo and behold, there was child pornography on it, he hadn’t even searched a wikipedia reference for adult pornography let alone child pornography, his browsing history was completely clear for all types of pornography. But you knew that already. Reeves was charged with possessing and accessing child pornography.

The Canadian Charter of Rights and Freedoms – a Reminder

My smart readers by now know all about the Charter. But let’s have a quick recap. We all have Charter rights. You have them, I have them, even users of child pornography have them. Here’s the big one for us now, section 8:

Everyone has the right to be secure against unreasonable search or seizure.

If one of your Charter rights are violated, like this section 8, you can ask a court to say the evidence collected in violation of the Charter should be excluded. That’s section 24. OK, reminder over.

The Lower Courts

So Reeves said to the first judge “hey my section 8 Charter rights were violated, exclude the evidence!” The judge said “sure”, because it’s established law that a third-party (the common law spouse here) cannot waive the Charter rights of the defendant (Reeves), and Reeves had a reasonable expectation of privacy. That’s all true! BUT! The Court of Appeal said “hmmm, the computer was in a shared space, so there was a lower expectation of privacy. Maybe holding on to the computer for 4 months was bad, but it’s close, so we think the evidence should be in.” Let’s head to…

The Supreme Court

9-0, Charter rights violated, exclude the evidence. Blog post over!

OK OK let’s explain a bit. Quoting the most famous section 8 case, the Court says that a section 8 analysis is to determine:

whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement

Let’s bullet point some other important notes from past section 8 cases the Court discusses:

• to determine whether the claimant has a reasonable expectation of privacy, courts examine “the totality of the circumstances”
• a warrantless search or seizure is presumptively unreasonable, and the Crown bears the burden of rebutting this presumption
• a search or seizure is reasonable “if it is authorized by law, if the law itself is reasonable and if the manner in which the search [or seizure] was carried out is reasonable

That all seems, uh, reasonable. Anyway, the Court says we’ve got two issues here:

whether the police infringed Reeves’ Charter rights by (1) entering the shared home without a warrant; and (2) taking the shared computer without a warrant.

Everyone agrees that holding on the computer for four months was a Charter violation, so we can forget that one (for now).

1. The Police Entry

The Court says meh, let’s ignore this considering the rest of what we’re going to say. Also, Reeves’ lawyer said in oral arguments he didn’t really care about this fact, the police entering was probably ok. Okay then!

2. The Taking of the Shared Computer

Now we get some analysis! Basically s. 8 is presumed violated when there is no warrant, unless the defendant did not have a reasonable expectation of privacy in the computer. So the Court asks, did Reeves have a reasonable expectation of privacy in the shared computer? To do that, you look at the “totality of the circumstances”, by asking 4 questions, just like we Jews do on Passover:

1. what is 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

For 1, the key point is that it’s not just the computer, it’s the data on the computer. And the privacy in that data! And it’s highly private! 2 – Darn right he has an interest! 3 – For sure he thought he had a reasonable expectation of privacy! So many exclamation points!!!

Now, as for 4, ooh boy does the Court go on and on. Now, the Court admits that because it was a shared computer, it was less reasonable that he would have a right to privacy in it, because he had less “control”. BUT! Control isn’t everything. Here:

By choosing to share a computer with others, people do not relinquish their right to be protected from the unreasonable seizure of it.

That I think will be our lesson from this case. Here, let’s reinforce that:

I cannot accept that, by choosing to share our computers with friends and family, we are required to give up our Charter protection from state interference in our private lives.

So to conclude this question 4:

in light of the deeply intimate nature of information that can be found on a personal computer, Reeves’ subjective expectation of privacy was objectively reasonable. His spouse’s consent could not nullify his reasonable expectation of privacy in the computer data.

Looking good for Reeves here. The Court then asks if the common law spouse could waive the Charter right by signing the consent. There is an interesting discussion about waiving Charter rights but it comes down to this – “Waiver by one rights holder does not constitute waiver for all rights holders.” She could waive her own rights, but not his. To bring it all together:

In short, Reeves had a reasonable expectation of privacy in the shared computer and his rights had not been waived. Accordingly, the taking of the computer by the police constituted a seizure within the meaning of s. 8 of the Charter . This warrantless seizure was not reasonable because it was not authorized by any law. The seizure therefore violated Reeves’ rights under s. 8 of the Charter .

So with his Charter rights violated, the Court then analyzes whether the computer should be excluded as evidence, as per that section 24 I mentioned above. It’s a fun read if you like constitutional law, but I am sure you don’t. So to sum up, the Court says “there were serious Charter breaches throughout the investigative process” and the evidence should be excluded.

Other judgments

So while the Court ruled 9-0 to exclude the evidence, the judgment I just explained was only from seven judges. A couple of other judges wrote their own opinions. It’s what we in the law biz call “concurring in result”. A quick note on each for completeness’ sake.

Justice Moldaver wanted to write his opinion to talk about that police entry thing the 7 judges (and Reeves’ lawyer) didn’t feel like talking about. He thinks it’s friggin’ important! The Court should pronounce on whether one person can authorize entry into a shared residence. There is a long legal analysis of some common law principle of police entry power, yada yada, and then… nothing. He doesn’t really conclude anything about it because the police officer didn’t provide enough information in the lower court. Well that was useless.

Justice Côté’s decision is more interesting. First, she also wants to talk about the police entry business. She just says it was legal. OK! But then she says that the seven judges were wrong when they said the common law spouse could not consent to removing the computer. Shots fired! She points out a major fact that the seven judges seem to have ignored – the defendant himself was not allowed in the house! He was banned! He did not have much of a reasonable expectation of privacy when he couldn’t even get in the house himself!

BUT, even though the police entry and the computer seizure were lawful, the police still fucked up by sitting on the computer for four months. The Criminal Code says the police have to report the seizure of property to a justice “as soon as is practicable”. 4 months is not that! And when the police finally did get around to asking for a warrant to look at the data on the computer, they left out a whole bunch of info, and added misleading info, that the judge who issued the warrant implied would have affected the decision. All of this together violated Reeves’ Charter rights, and the evidence should be excluded.

Superterriffic Funtime Happy Hour Analysis Time

Well this wasn’t really about the internet at all. Maybe I should have not written about it? Although I am a privacy guy too, so OK.

The point is even if you share a computer, or presumably other devices that have sensitive info on them, you have a right to privacy in them. Good lesson! Too bad we had to let a child pornographer go free to learn it.