In R v Reeves, 2018 SCC 56, delivered last week, the Supreme Court held that section 8 of the Canadian Charter of Rights and Freedoms, which protects the right not to be subject to unreasonable search and seizure, prevents the police from seizing (even without searching) a computer located in the common area of a home with the consent of only one, but not the other of the home’s occupiers. As in a number of other search-and-seizure cases, it is Justice Karakatsanis who takes the lead in articulating a narrow view the police powers. Unlike in R v Fearon, 2014 SCC 77, [2014] SCR 621 and R v Saeed, 2016 SCC 24, [2016] 1 SCR 518 she carries a strong majority of her colleagues ― all but one, in fact, on this issue ― with her. And unlike in those two cases, I suspect that Justice Karakatsanis’ pro-privacy disposition has not served her well.
The facts of the case are somewhat quirky. Mr. Reeves had shared a home ― and a computer ― with his common-law spouse, Ms. Gravelle. So far, so ordinary. However, following a family violence incident, Mr. Reeves was barred from being at the home without Ms. Gravelle’s consent, which she eventually withdrew. Still, as a matter of property rights, both the home and the computer were still shared between Mr. Reeves and Ms. Gravelle. Ms. Gravelle also informed the authorities that she had previously found child pornography on the computer. A police officer came, and, with Ms. Gravelle’s consent, he took the computer back to the police station ― where it sat, seemingly of no interest to anyone, for four months, despite the Criminal Code requiring such seizures to be reported to a justice of the peace. Eventually, the police finally concocted a warrant application ― which the trial judge later found to be tendentious and deficient to the point of invalidating the warrant ― and searched the computer, duly finding the child pornography, leading to charges against Mr. Reeves, who argued that the evidence was obtained in violation of his Charter rights and should be excluded.
There were two possible violations of Mr. Reeves’ rights for the Supreme Court to look into. First, the police officer’s entry into and search of the shared home; second, the seizure of the shared computer. (There was no dispute that the lengthy detention of the computer in violation of the Criminal Code and its search pursuant to a warrant that was subsequently invalidated were constitutionally problematic.) However, for the majority, Justice Karakatsanis does not pronounce on the requirements of the Charter with respect to police entry into a shared home with the consent of only one of its occupiers. She finds that the matter is best left for another time, when it will be more fully argued. Justice Moldaver, in a concurring opinion, agrees that now is not the time to dispose of the question ― and proceeds to lay out a detailed case for why the police have a common law power to enter to speak with one co-occupier of a shared home, while insisting that this argument is only tentative.
For the majority, the case turns on the question of the seizure of the computer. This, in turn, divides into two sub-issues: first, whether Mr. Reeves had a “reasonable expectation of privacy” in the machine; and second, whether Ms. Gravelle could obviate or waive his rights by consenting to the seizure anyway.
As Justice Karakatsanis explains, “[t]he reasonable expectation of privacy standard is normative, rather than descriptive” [28] ― it is not really about what the person concerned expected his or her privacy rights to be in the circumstances, but about where the balance between privacy and societal interests (in particular, in the investigation and punishment of offences) ought to be struck. In deciding this question, Justice Karakatsanis insists that “the subject matter of the seizure was the computer, and ultimately the data it contained about Reeves’ usage, including the files he accessed, saved and deleted”. [30] Even though, as the Supreme Court previously held, a separate warrant would be required to actually search the data contained in the computer, “Reeves’ informational privacy interests in the computer data were still implicated” [30] because he lost control of it, including the ability to destroy it. The data computers contain can be “highly private” [34], and thus not only the search, but also the mere seizure of “a personal computer from a home” “presumptively require[s]” “specific, prior judicial authorization”. [35] This is so even when the computer is shared and no one individual can expect absolute privacy when using it.
As for a co-occupier of a home consenting to the police seizing a shared computer, it “cannot nullify” [41] an existing reasonable expectation of privacy: “[t]he decision to share with others does not come at such a high price in a free and democratic society”. [44] Those others can report suspicions to the police, but it does not follow that the police can do anything they (the others, that is) consent to. It is not their (the others’) rights that are at stake, after all, and the fact that they too may have rights or privacy expectations over the same object or space is beside the point. As for what the police can do if a person actually brings an object in which another has a reasonable expectation of privacy to them, that “remains for another day”. [46]
In the event, the majority, as well as Justice Moldaver, conclude that the Charter breaches in this case are serious enough to warrant excluding the evidence found Mr. Reeves’ computer. Justice Côté, in a concurring opinion, agrees with this outcome ― even though, as I am about to explain, she does not think that the seizure of the computer amounted to a Charter breach at all. (The Supreme Court, which only considers outcomes in its statistics, will triumphantly count Reeves as yet another unanimous decision ― yet as Peter McCormick recently explained here, it is a mistake to do so.)
On the key issue of the case ― the application of section 8 of the Charter to shared spaces and objects ― Justice Côté takes an approach that is the opposite of the majority’s. Unlike Justice Karakatsanis, Justice Côté directly addresses the question of whether police can enter shared spaces with the consent of a single occupier ― and answers in the affirmative, albeit with a possible qualification. Justice Côté writes that “it is not objectively reasonable for a cohabitant … to expect to be able to veto another cohabitant’s decision to allow the police to enter any areas of that home that they share equally”. [112] Such a veto would amount to a negation of “consenting cohabitant’s liberty and autonomy interests with respect to those spaces”. [112] It would also “require the police to identify, locate and obtain the consent of every person who lives in the home, or has any expectation of privacy with respect to common areas of the home”, [114] which is likely to be unduly burdensome at best, if not quite impossible. And applying this approach to shared virtual spaces or objects ― say, a text messaging chain ― would produce similarly perverse consequences. Meanwhile, the search of common areas of a shared home is unlikely to produce intrusions into a person’s deepest secrets.
Justice Côté takes a similar approach to the seizure of a shared computer. While acknowledging that searching such a computer would require prior authorization, she argues that the mere seizure consented by one of the computer’s co-users is not a violation of the other co-users’ rights ― and thus disagrees with the majority on this key point. Again, it is not reasonable to expect that a co-user will not allow the authorities to seize a shared computer, and concluding otherwise would deny the co-user’s autonomy. The context of co-ownership and joint control influences the scope of one’s reasonable expectation of privacy. Furthermore, Justice Côté stresses the fact that only the seizure of the physical object, not the information it contains, is at issue, and reproaches the majority for conflating the two. She also points out that the majority’s approach may well amount to recognizing an expectation of privacy not just in favour of a co-owner of a computer, but also of, say, a guest who used it at some point in the past. Justice Côté adds that of course a co-owner should be able to take a shared computer to the police ― and letting the police take it is no different.
As noted at the outset, I am inclined to think that Justice Karakatsanis has indeed gone too far in protecting privacy here. Justice Côté is right that the majority conflate interests in maintaining control of a physical object and those in ensuring the privacy of the data that this object contains. And it is true that, by effectively granting a veto to each co-user (and perhaps even a past user ― perhaps the majority would distinguish that case, but it is indeed unclear how, and it’s unfortunate that Justice Karakatsanis doesn’t address the point), the majority compromise the autonomy ― and interfere with legitimate interests ― of other co-users. It would, as Justice Côté says, be odd if such people couldn’t take things of which they have legitimate control to the police ― and no less odd if they could not invite the police to take such things.
At the same time, a couple of points bother me about Justice Côté’s reasons. First, she might be too sanguine about the prospect of police not gaining access to particularly private information in common areas of shared dwellings. This may indeed be a reasonable assumption if the people living together are what in North America are misleadingly called) room-mates, and elsewhere, more accurately, flat-mates, who each have a private room. But if they are spouses, or otherwise family members, the distinction between common and private spaces within the shared home may not be drawn with any clarity. Perhaps this does not matter after all, but Justice Côté would have done well to address this issue.
I also am somewhat puzzled by Justice Côté’s references to the odd circumstance that Mr. Reeves had lost access to the theoretically-shared home and computer that were the objects of the police’s interest here. It’s not quite clear how much this fact matters to Justice Côté’s conclusions. I think it’s not particularly significant in her reasoning regarding police entry into a shared dwelling, but on the seizure issue, Justice Côté explicitly says that it is “relevant” that Mr. Reeves “lacked control [of the computer] as a result of his own actions”. [130] Yet not only was this “result” an indirect and unintended, albeit foreseeable one, but, more importantly, one is left in some doubt about how Justice Côté thinks more ordinary cases, where this “relevant” factor will not be present, ought to be decided.
Ultimately, Reeves might not be a very important case. The one issue it actually decides, whether police can seize shared computers with the consent of one but not all of their users, may not recur all that often, insofar as people increasingly use personal laptops, tablets, or smartphones. I don’t actually know if they do, but I suspect that they might. Perhaps its chief interest is in the trends that it confirms: Justice Karakatsanis’ role as the Supreme Court’s leading pro-privacy voice, and Justice Côté’s as its leading independent thinker. On the whole, the Court needs both, even when they disagree, and even in cases where neither is quite right.
Double Aspect 