R. v. Reeves

R. v. Reeves
Collection
Supreme Court Judgments
Date
2018-12-13
Neutral citation
2018 SCC 56
Report
[2018] 3 SCR 531
Case number
37676
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from
Ontario
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531
Appeal Heard: May 17, 2018 Judgment Rendered: December 13, 2018 Docket: 37676
Between:
Thomas Reeves
Appellant
and
Her Majesty The Queen
Respondent
- and -
Director of Public Prosecutions, Director of Criminal and Penal Prosecutions, Attorney General of British Columbia, Criminal Lawyers’ Association (Ontario) and Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic
Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
Reasons for Judgment: (paras. 1 to 69)
Concurring Reasons: (paras. 70 to 103)
Concurring Reasons: (paras. 104 to 141)
Karakatsanis J. (Wagner C.J. and Abella, Gascon, Brown, Rowe and Martin JJ. concurring)
Moldaver J.
Côté J.
R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531
Thomas Reeves Appellant
v.
Her Majesty The Queen Respondent
and
Director of Public Prosecutions,
Director of Criminal and Penal Prosecutions,
Attorney General of British Columbia,
Criminal Lawyers’ Association (Ontario) and Samuelson‑Glushko
Canadian Internet Policy and Public Interest Clinic Interveners
Indexed as: R. v. Reeves
2018 SCC 56
File No.: 37676.
2018: May 17; 2018: December 13.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Search and seizure — Remedy — Exclusion of evidence — Accused’s spouse consenting to police entry into home and seizure of computer from shared space — Child pornography found on seized computer and accused charged with possessing and accessing child pornography — Whether police infringed accused’s rights to be secure against unreasonable search and seizure by entering shared home and seizing shared computer without warrant — If so, whether evidence ought to be excluded — Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
The accused shared a home with his common‑law spouse. Following charges of domestic assault against the accused, a no‑contact order was issued which prohibited the accused from visiting the home without his spouse’s prior, written and revocable consent. When the spouse contacted the accused’s probation officer to withdraw her consent for him to enter the home, she reported that she had found what she believed to be child pornography on the home computer which she shared with the accused. A police officer came to the family home without a warrant. The accused’s 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 detained the computer without a warrant for more than four months before searching it. They also failed to report the seizure of the computer to a justice, despite the requirements of s. 489.1 of the Criminal Code . When the police finally obtained a warrant to search the computer, they found 140 images and 22 videos of child pornography. The accused was charged with possessing and accessing child pornography but applied to exclude the computer‑related evidence claiming that his right to be secure against unreasonable search or seizure pursuant to s. 8 of the Canadian Charter of Rights and Freedoms had been violated. The application judge agreed. Accordingly, he excluded the computer evidence under s. 24(2) of the Charter and the accused was acquitted. The Court of Appeal allowed the Crown’s appeal from the acquittal, set aside the exclusionary order and ordered a new trial.
Held: The appeal should be allowed, the evidence excluded and the acquittal restored.
Per Wagner C.J. and Abella, Karakatsanis, Gascon, Brown, Rowe and Martin JJ.: The police infringed the accused’s Charter rights when they took the computer from his home. Although the computer was shared, the accused maintained a reasonable expectation of privacy in it. 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.
It is not necessary in this case to decide whether the entry into the home constituted a separate violation of the accused’s rights under s. 8 of the Charter . Even if the officer had lawfully been in the home, this would not make the seizure of the computer lawful. The officer testified that he asked for the spouse’s consent to seize the computer because he did not believe he had grounds to obtain a warrant. Further, whether police entry into a shared home with the consent of one resident violates the Charter raises complex questions that require a considered response. They are best answered in a case that directly turns on the issue, with the benefit of full submissions.
There is a presumption that the taking of an item by the police without a warrant violates s. 8 of the Charter unless the claimant has no reasonable expectation of privacy in the item or has waived his Charter rights. In assessing whether a claimant has a reasonable expectation of privacy in an item that is taken, courts must consider the totality of the circumstances. In particular, they must determine (1) the subject matter of the alleged seizure; (2) whether the claimant had a direct interest in the subject matter; (3) whether the claimant had a subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable.
In this case, the accused had a reasonable expectation of privacy in the shared computer. The subject matter of the seizure was the computer, and ultimately the data it contained about the accused’s usage, including the files he accessed, saved and deleted. When the police seize a computer, 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 subject to potential future state inspection. Thus, seizing the computer interfered with the accused’s expectation of privacy in its informational content. The accused undoubtedly had a direct interest and subjective expectation of privacy in the computer and the data it contained, as he used the computer and stored personal data on it. Finally, the accused’s subjective expectation of privacy was objectively reasonable. While control is relevant in assessing whether a subjective expectation of privacy is objectively reasonable, it is not an absolute indicator of a reasonable expectation of privacy, nor is a lack of control fatal to a privacy interest. In this case, the accused’s control over the computer was limited, as compared to someone who is the sole user of a personal computer. However, shared control does not mean no control. 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. Similarly, ownership is relevant, but not determinative, in assessing whether a subjective expectation of privacy is objectively reasonable. The joint ownership of the computer does not render the accused’s subjective expectation of privacy objectively unreasonable.
While it is reasonable to ask citizens to bear the risk that a co‑user of their shared computer may access their data on it, and even perhaps discuss this data with the police, it is not reasonable to ask them to bear the risk that the co‑user could consent to the police taking this computer. 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. In light of the deeply intimate nature of information that can be found on a personal computer, the accused’s subjective expectation of privacy in this case was objectively reasonable. His spouse’s consent could not nullify his reasonable expectation of privacy in the computer data. Because someone is always likely to have a reasonable expectation of privacy in a personal computer, the taking of a personal computer without a warrant and without valid consent will constitute a presumptively unreasonable seizure.
The presumptive warrant requirement for seizures captured by s. 8 of the Charter is not triggered if an accused’s Charter rights were waived. However, waiver by one rights holder does not constitute waiver for all rights holders. To hold that there is 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. While the accused’s spouse undoubtedly had constitutionally protected privacy interests in the shared computer, this did not entitle her to relinquish the accused’s constitutional right to be left alone. The accused 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. It therefore violated the accused’s rights under s. 8 of the Charter .
The Charter ‑infringing state conduct in this case was serious. The police service’s specialized cyber‑crime unit should have been aware of the unique and heightened privacy interests in computers and should have known that a third party cannot waive another party’s Charter rights. Because there were multiple serious Charter breaches throughout the investigative process, the police conduct undermined public confidence in the rule of law. While society’s interest in the adjudication of this case on its merits was strong and the alleged offences were serious, given the seriousness of the state conduct and its impact on the accused’s Charter ‑protected interests, the admission of the evidence would bring the administration of justice into disrepute.
Per Moldaver J.: There is agreement with the majority that the accused had a reasonable expectation of privacy in the shared computer and that in the circumstances, its warrantless seizure constituted a breach of the accused’s rights under s. 8 of the Charter , despite his spouse’s consent. There is also agreement that the resulting evidence should be excluded under s. 24(2) .
While counsel for the accused here did not challenge the police entry into the home and conceded that police entry into a shared residence is not a search, the importance of the entry provides a compelling reason to consider this issue. A possible alternate basis for concluding that the police entry in this case was lawful is that the police had the power to enter the shared residence at common law under the ancillary powers doctrine. The analysis under this doctrine, which is used to assess whether the police have the authority at common law to take an action that interferes with an individual’s liberty or property, proceeds in two stages: whether the police conduct at issue falls within the general scope of their statutory or common law duties and whether the conduct involves a justifiable use of police powers associated with that duty.
At the first stage, entering into a shared residence when invited to take a witness statement in connection with a criminal investigation falls within the scope of police duties. Entering a home to take a witness statement in connection with a criminal investigation furthers the police’s mandate to encourage crime prevention within the community, apprehend criminals and assist victims of crime. At the second stage, the proposed power may well be a reasonably necessary interference with individuals’ privacy interests in their homes. The ability of the police to enter into a home to take a statement when invited serves an important investigative function. Further, it may well be necessary for police to intrude on a co‑resident’s expectation of privacy in his or her home to do so.
In addition, the extent of the interference with the expectation of privacy occasioned by that action is minimal. When the police enter a home, they interfere with the expectation of privacy of all residents who did not consent to that entry. However, properly constrained, entering a home when invited by an occupant to take a witness statement is minimally intrusive on the other resident’s privacy interests. Specifically, five constraints on the police entry power operate to minimize the extent of the interference with the expectation of privacy: (1) the police must offer the authorizing resident, and any other cooperating occupants, a suitable alternative interview location — if one is available — that does not potentially intrude upon the reasonable expectations of privacy of co‑residents in their home; (2) the purpose of the entry must be limited to taking a statement from the authorizing resident or one or more willing occupants in connection with a criminal investigation; (3) the police are only permitted to enter the home’s common areas into which they have been invited; (4) the police can only enter if invited in by a resident with the authority to consent and that consent must be voluntary, informed and continuous; and (5) unless the police obtain the necessary grounds to take further investigative action, the duration of the entry must be limited to taking a statement from the authorizing resident or one or more willing occupants. These constraints act to limit the impact of the police entry on the non‑consenting resident’s privacy interests while allowing the police to engage in an important and necessary facet of their duty to investigate crime. This entry power may well be a reasonably necessary, and therefore justifiable, incursion on an individual’s expectation of privacy.
Per Côté J.: There is agreement with the majority that the evidence should be excluded under s. 24(2) of the Charter , and therefore that the appeal should be allowed. However, there is disagreement that the issue of the entry into the home should not be addressed and that the police removal of the computer was unlawful.
The issue of whether the police can lawfully enter common areas of a shared home with the consent of one cohabitant should be addressed as it was argued by the parties and is relevant to the analysis pursuant to s. 24(2) of the Charter . One cohabitant can validly consent to a police entry into common areas of a shared residence, obviating the need for a warrant. The alternative rule — that the police may enter the common areas of a shared home only if they obtain consent from each and every person who lives there — is entirely unworkable. It is not objectively reasonable for a cohabitant, who shares a residence with others, to expect to be able to veto another cohabitant’s decision to allow the police to enter any areas of the home that they share equally. Other persons with overlapping privacy interests in and right to common spaces can validly permit third parties, including the police, to enter those spaces. To hold otherwise would be to interfere with the consenting cohabitant’s liberty and autonomy interests with respect to those spaces. However, the ability of law enforcement officials to enter on the basis of consent is not without limits. 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.
In this case, the accused’s spouse permitted a police officer to enter the home she shared with the accused. Not only do the police have a common law power to enter a shared residence for the purpose of taking a statement, but there is no violation of s. 8 in any event, because the accused’s expectation of privacy was not objectively reasonable in a context where a cohabitant, his spouse, provided her consent for the police to enter common areas of the home. The reason that the entry by the police was lawful was not because the accused’s spouse waived the accused’s Charter rights. The accused’s spouse did not waive anyone’s rights except her own. In the context of a shared home, the scope of the accused’s reasonable expectation of privacy was limited in recognition of the fact that his spouse was a first‑party rights holder who should be permitted to freely exercise her rights of access and control over common areas. The accused’s reasonable expectation of privacy was not sufficiently capacious to afford constitutional protection against his spouse’s decision to give the police access to common areas, particularly since he had no legal right to enter the home at the time of the police entry.
As with the police entry into the home, the accused’s expectation of privacy with respect to the computer he shared with his spouse was attenuated by the realities of joint ownership and use. It was not objectively reasonable for him to expect that his spouse could not exercise her own authority and control over the computer to consent to a seizure by the police. The subject matter of the seizure, that is, what the police were really after through the seizure of the computer, was only the physical device, not the data itself. At no point were the computer’s contents ever searched or examined by the police prior to obtaining a warrant. The law enforcement objective in seizing the computer was simply to preserve potential evidence. The seizure did nothing to interfere with the accused’s expectation of privacy in its informational content because that content remained private. When the subject matter of the seizure is properly defined as the physical computer, it is clear that it was not objectively reasonable for the accused to expect that he could prohibit his spouse from exercising her own authority and control over the computer to consent to a police seizure. Further, it is not objectively reasonable for the accused’s subjective expectation of privacy to act as a veto on his spouse’s ability to exercise her own property rights in the physical device. The scope of the accused’s s. 8 protection is limited by the fact that the computer was jointly owned and used by another person. His spouse’s rights in the computer — including her property rights in the device and her right to waive her own privacy protections — would be rendered meaningless if the accused could prevent her from consenting to the physical removal of the computer.
Even though the entry into the home and the seizure of the computer were both lawful, the evidence should still be excluded under s. 24(2) of the Charter based on the other violations of law in this case — specifically, the fact that the police failed to comply with ss. 489.1 and 490 of the Criminal Code by improperly detaining the computer and the fact that the search warrant was ultimately found to be invalid.
Cases Cited
By Karakatsanis J.
Applied: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; referred to: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Borden, [1994] 3 S.C.R. 145; R. v. Wills (1992), 12 C.R. (4th) 58; R. v. Monney, [1999] 1 S.C.R. 652; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Silveira, [1995] 2 S.C.R. 297; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. T. (R.M.J.), 2014 MBCA 36, 311 C.C.C. (3d) 185; R. v. Clarke, 2017 BCCA 453, 357 C.C.C. (3d) 237; R. v. Squires, 2005 NLCA 51, 199 C.C.C. (3d) 509; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. M. (M.R.), [1998] 3 S.C.R. 393; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211; R. v. Belnavis, [1997] 3 S.C.R. 341; R. v. Orlandis‑Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202.
By Moldaver J.
Applied: R. v. Waterfield, [1963] 3 All E.R. 659; referred to: R. v. Evans, [1996] 1 S.C.R. 8; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Stillman, [1997] 1 S.C.R. 607; Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Godoy, [1999] 1 S.C.R. 311; R. v. Kang‑Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37; R. v. Bui, 2002 BCSC 289, [2002] B.C.J. No. 3185 (QL); R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241; R. v. Borden, [1994] 3 S.C.R. 145; R. v. Wills (1992), 12 C.R. (4th) 58; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. M. (M.R.), [1998] 3 S.C.R. 393; R. v. Simmons, [1988] 2 S.C.R. 495.
By Côté J.
Distinguished: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; referred to: R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; R. v. M. (M.R.), [1998] 3 S.C.R. 393; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Reeves, 2017 ONCA 365, 350 C.C.C. (3d) 1; R. v. Clarke, 2017 BCCA 453, 357 C.C.C. (3d) 237; R. v. T. (R.M.J.), 2014 MBCA 36, 311 C.C.C. (3d) 185; R. v. Squires, 2005 NLCA 51, 199 C.C.C. (3d) 509; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. Mercer (1992), 7 O.R. (3d) 9; R. v. Stevens, 2011 ONCA 504, 106 O.R. (3d) 241; R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Belnavis (1996), 29 O.R. (3d) 321, aff’d [1997] 3 S.C.R. 341; R. v. Garcia‑Machado, 2015 ONCA 569, 126 O.R. (3d) 737; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Villaroman, 2018 ABCA 220, 363 C.C.C. (3d) 141.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 487.11 , 489(2) , 489.1 , 490 .
Police Services Act, R.S.O. 1990, c. P.15, s. 42(1).
Authors Cited
Fontana, James A., and David Keeshan. The Law of Search and Seizure in Canada, 10th ed. Toronto: LexisNexis, 2017.
Stewart, Hamish. “Normative Foundations for Reasonable Expectations of Privacy” (2011), 54 S.C.L.R. (2d) 335.
APPEAL from a judgment of the Court of Appeal for Ontario (LaForme, Rouleau and Brown JJ.A.), 2017 ONCA 365, 350 C.C.C. (3d) 1, 38 C.R. (7th) 87, [2017] O.J. No. 3038 (QL), 2017 CarswellOnt 7617 (WL Can.), setting aside a decision of Guay J., 2015 ONCJ 724, [2015] O.J. No. 6750 (QL), 2015 CarswellOnt 19460 (WL Can.). Appeal allowed.
Brad Greenshields and Julianna Greenspan, for the appellant.
Frank Au, Michelle Campbell and Randy Schwartz, for the respondent.
James C. Martin and Eric Marcoux, for the intervener the Director of Public Prosecutions.
Ann Ellefsen‑Tremblay and Nicolas Abran, for the intervener the Director of Criminal and Penal Prosecutions.
Written submissions only by Daniel M. Scanlan, for the intervener the Attorney General of British Columbia.
Michael Lacy and Bryan Badali, for the intervener the Criminal Lawyers’ Association (Ontario).
Jill R. Presser and Kate Robertson, for the intervener the Samuelson‑Glushko Canadian Internet Policy and Public Interest Clinic.
The judgment of Wagner C.J. and Abella, Karakatsanis, Gascon, Brown, Rowe and Martin JJ. was delivered by
Karakatsanis J. —
I. Overview
[1] Police discovered child pornography on a home computer that the accused, Thomas Reeves, shared with his spouse. His spouse consented to the police entry into the home and the taking of the computer from a shared space. The officer did not have a warrant. Reeves claims that the police obtained the child pornography evidence in a manner that infringed his rights under s. 8 of the Canadian Charter of Rights and Freedoms , and that it should be excluded under s. 24(2) of the Charter . The key issue in this case is whether the police officer could rely on the consent of Reeves’ spouse to take the shared computer from their home.
[2] Section 8 of the Charter protects all Canadians against unreasonable search and seizure. In assessing whether s. 8 has been infringed, courts consider whether an individual’s privacy interests must give way to the state’s interest in law enforcement. The challenge of s. 8 is that courts are most often called on to interpret its scope in cases, like this, where the police have found evidence that the claimant has engaged in criminal activity. Child pornography offences are serious and insidious, and there is a strong public interest in investigating and prosecuting them. However, in applying s. 8 , the question is not whether the claimant broke the law, but rather whether the police exceeded the limits of the state’s authority. The answer in this case impacts not only Reeves, but also the privacy rights of all Canadians in shared personal computers.
[3] The judge hearing the Charter application concluded that the police infringed Reeves’ s. 8 Charter rights, and excluded the child pornography evidence under s. 24(2) (2015 ONCJ 724). Reeves was acquitted at trial. The Court of Appeal did not agree with the application judge that the police infringed s. 8 when they took the computer with the consent of Reeves’ spouse (2017 ONCA 365, 350 C.C.C. (3d) 1). It allowed the appeal, admitted the evidence, and ordered a new trial.
[4] I agree with the application judge that the police infringed Reeves’ Charter rights when they took the computer from his home, and that the child pornography evidence should be excluded. Although the computer was shared, Reeves maintained a reasonable expectation of privacy in it. The consent of Reeves’ 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.
[5] I would allow the appeal and restore the acquittal.
II. Background
[6] Thomas Reeves, the appellant, shared a home with Nicole 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.
[7] 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.
[8] 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, R.S.C. 1985, c. C-46 , 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.
[9] The application judge, Guay J., concluded that the police had violated Reeves’ s. 8 Charter rights. First, the warrantless search of the home and seizure of the home computer breached s. 8 . While the police obtained the consent of Reeves’ spouse to enter the home and remove the home computer, a third party cannot waive another party’s Charter rights. Reeves had a reasonable expectation of privacy in the home and the home computer, and he did not consent to the entry of the police and the removal of the computer. Second, the police failed to comply with ss. 489.1 and 490 of the Criminal Code by detaining the computer for over four months without reporting its seizure to a justice. Third, the information to obtain a search warrant (ITO) was goal-oriented, misleading, unbalanced, and unfair, and the search warrant should not have been granted. The application judge excluded the computer evidence under s. 24(2) of the Charter given “the flagrant disregard of the accused’s section 8 Charter rights” (para. 49). At trial, Reeves was acquitted.
[10] The Court of Appeal allowed the Crown’s appeal from the acquittal, set aside the exclusionary order, and ordered a new trial. LaForme J.A., writing for the court, determined that the entry of the police into the home and the taking of the home computer did not violate Reeves’ s. 8 rights. He explained that, while one resident cannot waive the Charter rights of another, co-residency is relevant in assessing a claimant’s expectation of privacy. In this case, Reeves’ expectation of privacy in the shared spaces of the home and the computer was “greatly diminished” (para. 59). Therefore, it was reasonable for him to expect that Gravelle would be “able to consent to police entry into the common areas of the home or to the taking of the shared computer” (para. 62). However, the Court of Appeal agreed with the application judge that the continued detention of the computer and the subsequent computer search both violated s. 8 of the Charter . While noting that this was a “borderline case”, the Court of Appeal concluded that the evidence should not have been excluded under s. 24(2) (para. 109).
III. Analysis
A. Section 8 of the Charter
[11] Under s. 8 of the Charter , “[e]veryone has the right to be secure against unreasonable search or seizure.” The purpose of this provision is “to protect individuals from unjustified state intrusions upon their privacy” (Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 160). The s. 8 analysis is geared towards determining “whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement” (pp. 159-60).
[12] Section 8 of the Charter is only engaged if the claimant has a reasonable expectation of privacy in the place or item that is inspected or taken by the state (R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 34 and 36). To determine whether the claimant has a reasonable expectation of privacy, courts examine “the totality of the circumstances” (R. v. Edwards, [1996] 1 S.C.R. 128, at paras. 31 and 45(5)).
[13] Further, “the essence of a seizure under s. 8 is the taking of a thing from a person by a public authority without that person’s consent” (R. v. Dyment, [1988] 2 S.C.R. 417, at p. 431 (emphasis added)). In contrast, valid consent acts as a waiver of the claimant’s s. 8 rights. In such cases, there is no search or seizure within the meaning of the Charter , even though the claimant would ordinarily enjoy a reasonable expectation of privacy in the thing the police have taken or inspected (R. v. Borden, [1994] 3 S.C.R. 145, at pp. 160-62; R. v. Wills (1992), 12 C.R. (4th) 58 (Ont. C.A.), at p. 81).
[14] If s. 8 of the Charter is engaged, “the court must then determine whether the search or seizure was reasonable” (Cole, at para. 36). A warrantless search or seizure is presumptively unreasonable, and the Crown bears the burden of rebutting this presumption (Hunter, at p. 161; R. v. Monney, [1999] 1 S.C.R. 652, at para. 29). A search or seizure is reasonable “if it is authorized by law, if the law itself is reasonable and if the manner in which the search [or seizure] was carried out is reasonable” (R. v. Collins, [1987] 1 S.C.R. 265, at p. 278).
[15] The only s. 8 issues raised before this Court are whether the police infringed Reeves’ Charter rights by (1) entering the shared home without a warrant; and (2) taking the shared computer without a warrant. The Court of Appeal agreed with the application judge that the police infringed Reeves’ Charter rights by detaining the computer and subsequently searching it, and the Crown now concedes these points.
[16] In his written submissions, the appellant, Reeves, argues that the search of his home and the seizure of the home computer violated his rights under s. 8 of the Charter . He had a reasonable expectation of privacy in the home and computer and his spouse’s consent did not render the police’s conduct Charter -compliant. Concluding otherwise would be contrary to this Court’s rejection of the third-party consent doctrine in Cole. While Reeves may not have had 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.
[17] In his oral submissions, Reeves’ counsel maintained that the seizure of the computer violated the Charter , but submitted that the police entry into the home did not.
[18] The respondent, Her Majesty the Queen, submits that the police did not infringe the Charter by entering the home and taking the home computer. The Charter permits police to access shared places without a warrant when they act on the consent of a party who has a privacy interest in the place that is equal to and overlapping with the privacy interests of the other co-residents. A consent search or seizure is not a “search or seizure” within the meaning of the Charter . It is not reasonable for one cohabitant to expect that his or her right to exclude others will trump another cohabitant’s right to admit others. While one cohabitant cannot waive another cohabitant’s Charter rights by providing consent, it is reasonable to recognize that a cohabitant can permit police access in her own right.
(1) The Police Entry
[19] The application judge concluded that “the officer’s entry into a private residence without the consent of both owners or occupants constituted a search of those premises for section 8 Charter purposes” (para. 11). He noted the police officer entered the shared home for the purpose of obtaining the computer. In his view, Gravelle’s consent did not render the officer’s entry Charter -compliant because a third party cannot waive another party’s Charter rights. The Court of Appeal disagreed, and concluded that Gravelle could consent to the search of shared areas of the home.
[20] While the lower courts assessed whether the police entry into the home violated the Charter , given my conclusions on the other issues raised in this case, it is not necessary for me to decide whether the entry into the home constituted a separate violation of Reeves’ rights. Indeed, in oral submissions, Reeves’ counsel submitted that the entry was lawful.
[21] Even if the officer had lawfully been in the home, this would not make the seizure of the computer lawful. Section 489(2) of the Criminal Code provides that a police officer “who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds” was used in the commission of an offence or would afford evidence of an offence. Here, however, this section was not available; the officer testified that he asked for Gravelle’s consent to seize the computer because he did not believe he had grounds to obtain a warrant. Irrespective of whether the officer was “lawfully present” in the home, by his own admission, he did not have “reasonable grounds” to seize the computer.
[22] Therefore, in this case, the legality of the police entry does not affect the legality of the taking of the computer. As such, I proceed on the assumption that the entry was lawful.
[23] In any event, I do not think it prudent to explore this issue in the absence of full submissions, given that many competing considerations arise in determining whether and when police entry into a shared home on the consent of one resident violates the Charter .
[24] Of course, the law has long recognized the prime importance of privacy within our homes (R. v. Silveira, [1995] 2 S.C.R. 297, at para. 140; see also R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 22). However, if a resident cannot consent to police entry to a shared home without the consent of all the other residents, it could undermine the dignity and autonomy of that resident — especially for a victim of a crime.
[25] Several provincial appellate courts have concluded that a resident has the right to permit police entry into common areas of the home without the consent of all other residents (R. v. T. (R.M.J.), 2014 MBCA 36, 311 C.C.C. (3d) 185, at paras. 41-52; R. v. Clarke, 2017 BCCA 453, 357 C.C.C. (3d) 237, at paras. 55-56 and 62-63; R. v. Squires, 2005 NLCA 51, 199 C.C.C. (3d) 509, at para. 34). However, without deciding the issue, police entry into a shared home with the consent of only one resident raises a number of important questions. Would police also be authorized to search common areas of the home? Should the privacy interests of other residents affect the authority to seize evidence, even if in plain view? Could another resident who is present object to the police entry? What if the officers seek entry for the specific purpose of investigating one of the other residents?
[26] 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. They are best answered in a case that directly turns on this issue, with the benefit of full submissions.
(2) The Taking of the Shared Computer
[27] The key issue in this case is whether the police violated Reeves’ Charter rights when they took the shared computer without a warrant but with Gravelle’s consent. There is a presumption that the taking of an item by the police without a warrant violates s. 8 of the Charter unless the claimant has no reasonable expectation of privacy in the item or has