Consent – not as clear-cut as it was in the yesteryears…

Reeves (R. v. Reeves 2018 SCC 56) shared a home with Gravelle, his common-law spouse. They were joint titleholders and had lived with their two daughters in this home for ten years. In 2011, Reeves was charged with domestic assault following an altercation with Gravelle and her sister. After this incident, a no-contact order was issued which prohibited Reeves from visiting the family home without Gravelle’s prior, written, and revocable consent. In October 2012, Gravelle contacted Reeves’ probation officer to withdraw her consent. She also reported that she and her sister had found what they believed to be child pornography on the home computer. They had found it in 2011.

Later that day, a police officer arrived at the family home without a warrant. Gravelle allowed the officer to enter. Gravelle signed a consent form authorizing the officer to take the home computer, which was located in the basement, a shared space in the home. The officer testified that he sought Gravelle’s consent because he did not believe he had reasonable grounds to obtain a warrant to search the home and seize the computer. The computer was owned and used by both spouses. Reeves was in custody on unrelated charges when the computer was taken by the police.

The police detained the computer without a warrant for more than four months, but did not search it during this time. They failed to report the seizure of the computer to a justice, as required by s. 489.1 of the Criminal Code, during this period. In February 2013, the police finally obtained a warrant to search the computer and executed it two days later. The police found 140 images and 22 videos of child pornography on the computer. Reeves was charged with possessing and accessing child pornography.

Reeves succeeded on a pre-trial application to exclude evidence based on a breach of his s. 8 Charter rights. The application judge found that Reeves had a reasonable expectation of privacy both in his home and its contents, including the computer. He found that Reeves’s rights were violated through the warrantless search and seizure of the computer from the home because he did not consent, by retaining the computer for four months without reporting the seizure to a justice and that the ITO relied upon to secure the warrant to search the computer was insufficient, so the warrant should have been denied. The judge found that the Charter-infringing conduct was serious as was the impact on Reeves’s Charter-protected interests and ordered that the evidence be excluded. As a result of the exclusion of evidence, the Crown’s case was gutted and an acquittal was entered. The ONCA found that while Reeves was a joint owner of the home, he had a minimal reasonable expectation of privacy in it as he could not access the home without his partner’s consent, she had revoked her consent, and he was in custody at the time. Seizing the computer did not interfere with Reeves’s heightened expectation of privacy in it or imperil any of his legitimate interests. Reeves’s partner could consent and her consent was valid as it was voluntary and informed. As a result, the evidence was admissible and a new trial was ordered.

Before I get into the SCC’s decision here, recall for a moment the R. v. Vu 2013 SCC 60 decision, which essentially ruled that:

[i]f, 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 (para. 3; see also para. 49).

So, part of the issue here was no statutory or common law authority could have justified the computer seizure in this case. If the police had had a warrant to search the home, Vu would have justified the seizure — but not the search — of the computer. The key issue in this case, then, was whether the police officer could rely on the consent of Reeves’s spouse to take the shared computer from their home?  To a lesser degree, whether the police infringed Reeves’s Charter rights by (1) entering the shared home without a warrant; and (2) taking the shared computer without a warrant.

The SCC said that, in short, the issue of whether police entry into a shared home with the consent of one resident violates the Charter raises complex questions that require a considered response, and they would be best answered in a case that directly turns on this issue, with the benefit of full submissions. Therefore, in this case, the legality of the police entry did not affect the legality of the taking of the computer.

At para. 47:

“…in light of the deeply intimate nature of information that can be found on a personal computer, Reeves’s subjective expectation of privacy was objectively reasonable. His spouse’s consent could not nullify his reasonable expectation of privacy in the computer data. Indeed, both the Crown and the Court of Appeal appear to have recognized that Reeves had a reasonable (although diminished) expectation of privacy. While Reeves’s reasonable expectation of privacy in the computer was limited, given that he shared control over the computer with his spouse, it still suffices to trigger the protection of s. 8 of the Charter …. Indeed, “[a] reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter” ….

The SCC then turned to the alternative proposition that underlied the Crown’s argument — that Reeves’ Charter rights were waived by Gravelle’s consent. The presumptive warrant requirement for seizures captured by s. 8 of the Charter is not triggered if Reeves’s Charter rights were waived. The Crown’s argument that there was no seizure within the meaning of the Charter when a party with an equal and overlapping privacy interest provides consent would effectively permit the consenting party to waive the privacy rights of the other parties. This would be inconsistent with the Court’s decision in R. v. Cole 2012 SCC 53, said the SCC (the third-party consent doctrine – although a person may not have exclusive control over the home and computer, control does not need to be exclusive to support a reasonable expectation of privacy. By assuming the reasonable risks of shared living, a person does not assume the risk that the police can enter a shared home and seize its contents at the sole discretion of a co-resident).

According to the SCC, 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’s rights under s. 8 of the Charter. Given the seriousness of the state conduct and of its impact on Reeves’s Charter-protected interests, the application judge was correct in concluding that the admission of the evidence would bring the administration of justice into disrepute. The evidence was excluded and the acquittal restored.

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