Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people���s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. photo:contributed

Kootnekoff: Privacy rights in shared computers

An interesting decision arose recently from the Supreme Court of Canada. In R. v. Reeves, the extent of privacy rights in a shared computer was considered in the context of a criminal case.

Reeves shared a home with his common law spouse. Following domestic assault charges against him, a no contact order was issued. It prohibited him from visiting the home without his spouse’s consent.

When the spouse contacted Reeves’ probation officer to withdraw her consent for him to enter the home, she advised that she had found evidence of a serious crime on the home computer, which she shared with Reeves.

A police officer came to the family home, without a warrant. The spouse allowed the officer to enter and signed a consent form authorizing him to take the computer, which was located in a shared space in the home.

The police held the computer without a warrant for more than four months before searching it.

When they finally obtained a warrant to search it, they found evidence of a serious crime relating to minors.

Reeves was charged. He applied to exclude the evidence found on the computer because the police had seized it without a warrant. He argued that this violated his right to be secure against unreasonable search or seizure under s. 8 of the Canadian Charter of Rights and Freedoms.

The first judge agreed. The evidence from the computer was excluded. Reeves was acquitted. The Court of Appeal disagreed

The Supreme Court of Canada disagreed with the Court of Appeal. It unanimously held that the evidence was to be excluded and the acquittal restored.

The court acknowledged that offences regarding minors are “serious and insidious,” and that “there is a strong public interest in investigating and prosecuting” such crimes. However, it considered that the issue extended beyond this case.

The first question was not whether Reeves broke the law, but rather whether the police exceeded their authority. The answer to this question, the Court said, affects the privacy rights of all Canadians in shared personal computers.

The court stated that taking a personal computer without a warrant and without valid consent is presumed to be an unreasonable seizure. The burden is then on the crown to rebut this presumption. Instead of doing so, in this case the Crown sought to rely on the spouse’s consent.

Sharing a computer does not mean relinquishing one’s right to be protected from unreasonable seizure of it—“[s]hared control does not mean no control.” Despite the no contact order, Reeves still exercised a level of control over the computer.

Although he had a diminished expectation of privacy because he used a shared computer, he still had an expectation of privacy sufficient to invoke the protection of section 8 of the Charter. Seizing it without a warrant violated those rights.

The court acknowledged that there is a strong societal interest in proceeding with cases of this nature, the evidence was reliable and important, and the alleged offences were serious.

However, it stated that the seriousness of the offence “has the potential to cut both ways”. While there was a “heightened interest in” not throwing out serious cases based on what some may call a ‘technicality’, where the offence charged is serious, there is also a “vital” societal interest in “having a justice system that is above reproach.”

As a parent, one might want to have seen the evidence from the computer admitted and the accused convicted. But if you are ever accused of committing a crime, surely you would want to know that our judicial system scrutinizes the admissibility of evidence against you.

Many Canadians might feel that we live in an age of diminished privacy, due to social media, cell phone cameras and big technology algorithms. It is reassuring that the Supreme Court of Canada considers Canadians’ privacy rights to be of great importance.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or info@inspirelaw.ca. Check out our website, www.inspirelaw.ca.

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