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Supreme Court rules that individuals who share computers have a right to privacy

Though two justices had to explain their concurring opinions, the court issued a 9-0 ruling

The Supreme Court of Canada (SCC) has ruled that individuals who share computers have a reasonable expectation of privacy, in a 9-0 decision.

Canada’s highest court was forced to rule on the matter in a child pornography case, in which the spouse of Thomas Reeves — an individual believed to have child pornography on a shared computer — allowed a police officer to seize and search the computer without a valid warrant.

Reeves’s spouse signed a consent form allowing the officer to take the computer. The officer then detained the device for over four months without searching it, also failing to properly report the seizure to a justice.

Once police obtained a warrant, they discovered 140 images and 22 videos of child pornography.

Reeves was charged for possessing and accessing child pornography, but successfully filed an application to exclude the evidence, arguing that his section eight Charter right to be secure against unreasonable search or seizure had been violated, and was acquitted.

A Court of Appeal later ordered a new trial, choosing to set aside the order to exclude the evidence found on the computer shared by Reeves and his spouse.

However, as per a December 13th, 2018 decision penned by puisne justice Andromache Karakatsanis, the SCC has now ruled that the evidence should ultimately be excluded and that the acquittal be restored.

“Although the computer was shared, Reeves maintained a reasonable expectation of privacy in it,” reads an excerpt from the December 13th ruling.

“The consent of the accused’s spouse did not nullify his reasonable expectation of privacy, or operate to waive his Charter rights in the computer. The warrantless seizure of the computer and the search of it without a valid warrant were unreasonable, and the admission of the child pornography evidence would bring the administration of justice into disrepute.”

Karakatsanis further wrote that shared control over a single computer does not equal no control at all.

“By choosing to share a computer with others, people do not relinquish their right to be protected from the unreasonable seizure of it by the state,” wrote Karakatsanis, for the majority.

“By choosing to share their computers with friends and family, Canadians are not required to give up their Charter protection from state interference in their private lives, and to accept that their friends and family can unilaterally authorize police to take things that they share.”

Majority agreement, with additional comments

It’s worth noting that while puisne justice Suzanne Côté agreed with the majority, she added that she disagreed that the issue “of the entry into the home should not be addressed and that the police removal of the computer was unlawful.”

According to Côté, police shouldn’t require the consent of every individual who shares a dwelling before entering a home, stating that such a rule would be “entirely unworkable.”

Côté outlined specific instances that police can enter a shared dwelling without obtaining the consent of everyone who shares a home.

“The consenting person must have the authority to consent; the consent must be limited to shared places or things; the consent must be informed and voluntary; and the police must respect the limits of the consent, which is freely revocable at any point during the entry or search,” wrote Côté.

Despite her disagreements, Côté nonetheless stated that the evidence should be excluded because the police failed to adequately comply with portions of the Criminal Code of Canada “by improperly detaining the computer and the fact that the search warrant was ultimately found to be invalid.”

Source: Supreme Court of Canada

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