Privacy Rights in Shared Computers
- December 30, 2018
- Clayton Rice, Q.C.
It all started when Nicole Gravelle called a probation officer who was supervising her common law spouse, Thomas Reeves, to withdraw her consent under a court order permitting him to visit the family home in Sudbury, Ontario. Gravelle said she found child pornography on a shared computer in the basement recreation area. Cst Kevin Santi then showed up without a search warrant. Here’s the story.
Gravelle let the officer in and signed a consent form permitting him to take the computer. Cst Santi would later testify that he asked for Gravelle’s consent because he did not believe he had grounds to get a warrant. Reeves was in custody on unrelated charges when Cst Santi took the computer. The police kept the computer for over four months and failed to report the seizure to a justice under s 489.1 of the Criminal Code. The police finally obtained a search warrant and found images and videos of child pornography on the computer. Reeves was charged with accessing and possessing child pornography under s 163 of the Code. He motioned to exclude the evidence asserting that the police violated his reasonable expectation of privacy under s 8 of the Charter of Rights.
1. Judicial History
On November 30, 2015, Justice Andre Guay of the Ontario Court of Justice granted the application in a ruling reported as R v Reeves, 2015 ONCJ 724. Justice Guay held that Gravelle, a third party, could not waive Reeves’ privacy rights, the police failed to comply with the seizure reporting requirements and the search warrant was based on misleading information and should not have been issued. “The Greater Sudbury Police Service,” wrote Justice Guay at para 20, “has a cyber-crime unit and the legal and technical experience that expectedly comes with it. It is certainly not unreasonable to expect of its officers that they will know that in matters of search and seizure of property in which there is a reasonable expectation of privacy, consent is mandatory and cannot be given by third parties.” Reeves was acquitted. The Crown appealed.
On May 5, 2017, the Ontario Court of Appeal reversed in an opinion reported as R v Reeves, 2017 ONCA 365. Writing for a unanimous three member panel, Justice Harry LaForme held, at para 59, that Reeves’ expectation of privacy in the shared spaces of the family home and in the family computer was “greatly diminished”. Justice LaForme went on to conclude, at para 62, that it was not reasonable for Reeves to expect that Gravelle “would not be able to consent to police entry into the common areas of the home or to the taking of the shared computer.” Although Justice LaForme agreed with Justice Guay, at para 109, that the continued detention and search of the computer both violated s 8 of the Charter, the evidence should not have been excluded in this “borderline case”. The Supreme Court of Canada granted leave to appeal.
On December 13, 2018, the Supreme Court of Canada unanimously reversed in three separate opinions by Justice Andromache Karakatsanis, Justice Michael Moldaver and Justice Suzanne Cote reported as R v Reeves, 2018 SCC 56. There was nothing borderline about it at all. The evidence was excluded and Reeves’ acquittal by Justice Guay restored. Justice Karakatsanis’ opinion represents a seven member majority. I will focus on two things in the majority opinion that I will describe as (a) the Marakah question and (b) overlapping privacy interests.
(a) The Marakah Question
The Crown argued that there is a distinction between the seizure of the computer and the search of its data that occurred pursuant to the search warrant. However, Justice Karakatsanis affirmed at para 29, citing R v Marakah, 2017 SCC 59 at para 15, that the subject matter of a search must not be defined “narrowly in terms of the physical acts involved or the physical space invaded, but rather by reference to the nature of the privacy interests potentially compromised by the state action.” The Marakah question is: What were the police really after?
The subject matter of the seizure here was the computer and, ultimately, the data it contained. Although the privacy interests engaged by a seizure may be different from those triggered by a search, privacy interests in information or data are still implicated by the physical seizure of the computer itself. “When police seize a computer,” wrote Justice Karakatsanis at para 30, “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 available for future state inspection.”
Justice Karakatsanis specifically disagreed with Justice LaForme’s conclusion in the Ontario Court of Appeal, at para 61, 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.” But, in answer to the Marakah question – What were the police really after? – it is trite that they were not after the computer to examine it for fingerprints. The purpose of the seizure was to preserve the computer so the police could access its data. Justice Karakatsanis rejected the focus on property rights, at para 31, because it “neglects the important privacy rights in the data that are also engaged by the seizure.” Prior judicial authorization is therefore a presumptive requirement under s 8 of the Charter to seize a personal computer from a home for good policy reasons. The rule protects privacy, fosters respect for constitutional rights and encourages more predictable policing.
(b) Overlapping Privacy Interests
Gravelle’s consent to the seizure of the shared computer could not nullify Reeves’ reasonable expectation of privacy in it. It is important to emphasize that the reasonable expectation of privacy standard is normative – not descriptive. While it is reasonable to ask that citizens bear the risk that a co-user might access their data, it is not reasonable to ask them to bear the risk that a co-user might consent to the police seizing the device. The question is not: What risk did Reeves take? The question is: What risk should be imposed on him in a free and democratic society? The answer would not only impact Reeves but, as Justice Karakatsanis said at para 2, it would also impact “the privacy rights of all Canadians in shared personal computers.” Justice Karakatsanis answered the question this way, at para 44:
“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. We are not required to accept that our friends and family can unilaterally authorize police to take things that we share. The decision to share with others does not come at such a high price in a free and democratic society. As the intervener Criminal Lawyers’ Association (Ontario) pointed out, such an approach to s 8 may also disproportionately impact the privacy rights of low income individuals, who may be more likely to share a home computer.”
The Crown argued 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”. The argument failed because it would permit a consenting party to waive the privacy rights of other parties inconsistent with the first party consent doctrine established by the Supreme Court in R v Cole, 2012 SCC 53. The first party consent doctrine requires that consent must be informed and voluntary to ensure that a waiver by the holder of a Charter right is an expression of free will. Justice Karakatsanis went on to say this, at para 53: “[A]lthough the privacy interests of co-occupants or co-users over some shared premises or items may be ‘overlapping’, it does not follow that those interests are ‘coextensive’. Indeed, where the consent giver and the claimant are not the same person, the s 8 Charter inquiry does not concern the legitimacy of the former’s privacy interests in the subject matter of the search or seizure, but rather the latter’s expectation of privacy in it.”
I will leave you with three things in conclusion.
First, there was no statutory or common law authority that justified Cst Santi’s seizure of the computer. Even if he had a warrant to search the home and seize the computer, the police would have needed a Vu warrant to search it given the unique privacy considerations that computers raise. In R v Vu, 2013 SCC 60 Justice Thomas Cromwell, writing for a unanimous court, put it this way, at para 3: “If, in the course of a warranted search, police come across a computer that may contain material for which they are authorized to search but the warrant does not give them specific, prior authorization to search computers, they may seize the device but must obtain further authorization before it is searched.”
Second, the majority opinion in Reeves is not new law. It is an application of established law to the circumstances of a specific electronic device not previously considered by the court. Although the court’s opinion in Cole on the first party consent doctrine was released only a few days before Cst Santi seized the computer from Gravelle, the ruling of the Ontario Court of Appeal in Cole, holding that a school board could not consent to the search of an employee’s computer, was released over a year earlier on March 22, 2011. Justice Karakatsanis, at para 62, agreed with Justice Guay’s comment that the Sudbury police cyber-crime unit “should have known that a third party cannot waive another party’s Charter rights.” As an aside, the unanimous ruling of the Ontario Court of Appeal reported as R v Cole, 2011 ONCA 218 was delivered by Justice Karakatsanis when she was a member of that court.
Third, in the result, Justice Karakatsanis rejected Justice LaForme’s exclusion analysis, at para 63, emphasizing the failure of the police to comply with the reporting requirements that “mandate police accountability for seizures that have not been judicially authorized”. Coupled with the misleading information contained in the Information to Obtain the search warrant, Justice Karakatsanis concluded, at para 65, that the police conduct undermined “public confidence in the rule of law”. Although Reeves had a reduced expectation of privacy in the shared computer that diminished the seriousness of the unreasonable search and seizure, Justice Karakatsanis went on to remind us of Justice Morris Fish’s comment in R v Morelli, 2010 SCC 8, at para 2, that “[i]t is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer” given the extremely private nature of the data that a personal computer may contain.