R v Reeves: The Impact of Joint-Residence on One’s Reasonable Expectation of Privacy
On May 5th 2017, the Ontario Court of Appeal released its decision in R v Reeves, 2017 ONCA 365 [Reeves], which deals with issues relating to the search and seizure of a computer from a jointly-owned home. The judgment also considers the admissibility of evidence (child pornography, in this case) obtained in violation of an individual’s right against “unreasonable search or seizure” under section 8 of the Charter. Having recently been granted leave to appeal to the Supreme Court of Canada (“the Court”) (Thomas Reeves v Her Majesty the Queen, Docket No. 37676 (SCC)), Reeves may serve as an opportunity for the Court to offer clarification on what I take to be the muddiest issue in the decision – the impact of joint-residence on the law of search and seizure and its corresponding impact on one’s reasonable expectation of privacy.
Facts, Issues & Judicial History
Thomas Reeves and his common-law spouse of 20 years, Nicole, shared a home with their two daughters (Reeves, para 6). In 2011, however, Reeves was charged with domestic assault and became subject to a “no contact” order that required him to stay away from the home absent Nicole’s “prior, written and revocable consent” (paras 2, 7). Later, in October 2012, Nicole reported to the police that there were pornographic videos on the family computer that “obviously involved children” (para 9). The police arrived later that day, without a warrant. However, “Nicole allowed the police to enter the residence and signed a consent form authorizing the seizure of the computer” (para 11).
The police then held (but did not search) the computer for over four months without a warrant. On February 26th 2013, they obtained a warrant and executed it on February 28th. They failed, however, to file a report on the computer to a justice in compliance with section 489.1(1) of the Criminal Code, RSC 1985, c C-46 [the Code] until March 15th 2013 (section 489.1(1) requires a peace officer to provide a report to a justice where they believe that property seized without a warrant should continue to be detained). This error was subsequently rectified and the police searched the computer, finding “140 images of child pornography and 22 videos of child pornography” (Reeves, paras 12-13). As a result, Reeves was charged with possessing child pornography and accessing child pornography (para 14).
In response, Reeves brought a pre-trial Charter application, claiming that the police had violated his rights against “unreasonable search or seizure” under section 8 of the Charter and that, as a result, all evidence from the computer should be excluded at his trial (Reeves, para 3).
The application judge agreed with Reeves, holding that, although Nicole had “freely consented to the search and seizure” of the computer, a third party cannot “validly consent to a search or otherwise waive a constitutional protection on behalf of another” (Reeves, para 38). Further, the police violated Reeves’ “ancillary rights” in section 489.1 and 490 of the Code and, as a result, the warrant to search the contents of the computer should not have been granted (paras 15, 29). As such, in considering whether or not the “[u]nconstitutionally obtained evidence should be excluded under s[ection] 24(2)” of the Charter, the application judge held that the “flagrant disregard” for Reeves’ Charter and ancillary rights by the police necessitated the exclusion of the evidence obtained as a result of the “search and seizure of his home computer” as well as “any evidence derived from a forensic examination of th[e] computer, its files and hard drive” (paras 29-30).
What is the Impact of Joint-Residence on One’s Reasonable Expectation of Privacy?
At the Court of Appeal, the main point of contention with the application judge’s decision was whether or not the initial seizure of the computer from the home was a violation of Reeves’ section 8 Charter rights. Writing for the unanimous panel, Justice LaForme disagreed with the application judge on the issue, holding that the seizure was not a violation of Reeves’ Charter rights.
In his analysis, Justice LaForme began by outlining two important points: First, that the section 8 right against unreasonable search and seizure “protects more than a narrowly conceived right to privacy, in the sense of a general ‘right to be let alone’” and, second, that the protection stems from “reasonable expectations” (Reeves, paras 34-35).
These points suggest that although the protections against invasions of privacy are robust, they are present only where it can be reasonably expected that such protections would be offered in the first place. Protection of privacy functions on a scale – “[t]he higher the expectation of privacy, the greater the claim to constitutional shelter” (Reeves, para 59).
In approaching the issue in this way, Justice LaForme moved away from the analysis of the application judge, which dealt with the waiver of Reeves’ constitutional rights by Nicole. For Justice LaForme, the issue is not whether Nicole could have waived Reeves’ constitutional rights by consenting to the search – of course, she could not – but rather whether Reeves’ situation (as a joint-resident) would lend itself to establishing a reasonable expectation of privacy in the computer (Reeves, para 46).
So, what is one’s reasonable expectation of privacy in the context of joint-residence? According to Justice LaForme, “the law of consent to search and seizure is not entirely settled” in this area (Reeves, para 43).
However, to begin with the obvious, “the fact of co-residency is clearly relevant to [one’s] reasonable expectation of privacy” – perhaps the most clearcut disadvantage to the choice to share a home with another person is the loss of some degree of privacy (Reeves, para 48). But how far does this loss extend? For Justice LaForme, the relationship of co-residency suggests, “from the outset that the other co-resident has the right to invite others into shared spaces” (para 48). Further, Justice LaForme posits that it would be reasonable to expect that a co-resident could, in certain circumstances, “invite an agent of the state into the residence” (para 48). And, “by the same token, one would not reasonably expect police entry without the consent of another co-resident” (para 48). As such, what matters in this case is twofold: (a) whether Reeves could have reasonably expected that his co-resident (and wife), Nicole, would have the power to consent to police entry into a common space, and (b) if so, if Nicole did actually consent to the entry (para 50).
As it is clear from the facts that Nicole did provide informed consent to the police entry, the only question is whether Reeves could have expected Nicole to have the power to offer such consent. Taking a step away from this particular case, I think this is a difficult question to answer. How is one to determine, on the basis of a given co-residence relationship, whether or not an individual has authority to permit police entry? Does a marital or common-law relationship provide the necessary power? Is joint-title or ownership required? What are the indicia that would suggest (or not suggest) the necessary level of authority? Establishing a standard here seems potentially messy.
In the case of the seizure of a computer, the issue is further complicated as “it is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer” (Reeves, para 54, citing R v Morelli, 2010 SCC 8, para 105). As such, in considering the power of another to authorize entry and consent to search and seize property, the fact that the property is a computer bears relevance. It is important to note, however, that in R v Vu, 2013 SCC 60 [Vu], the Supreme Court of Canada held that while the police must have “specific, prior authorization” to search the contents of a computer, they may simply seize a computer so long as it occurs during a valid search (Vu, paras 3, 49).
In this case, however, the issue is not entirely complicated, given Reeves’ particular circumstances – he did not have access to the home (and had not in over a year) as a result of the court order against him. As such, “Reeves’ expectation of privacy in the shared spaces of the family home and in the family computer was greatly diminished” (Reeves, para 59). Further, the seizure of the computer did not violate “Reeves’ heightened expectation of privacy in its informational content” (although this expectation was later violated as a result of the unintentional failure of the police to follow sections 489.1 and 490 of the Code) (paras 61, 73-95).
In the circumstances, Reeves should have expected that Nicole would have the authority to permit a search and seizure by the police and, as Nicole did in fact give such permission validly, Justice LaForme concluded that Reeves’ section 8 rights were not violated.
Should the Evidence Have Been Excluded?
Beyond the decision’s (potential) importance for clarifying the law surrounding the impact of joint-residence on privacy rights, it also offers insight into section 24(2) Charter jurisprudence and the balancing of individual rights versus societal interests.
In light of his decision to overturn the application judge’s holding on the constitutionality of the intial search, Justice LaForme held that “relevant factors” had been overlooked in the section 24(2) analysis on the admissibility of the computer contents. As a result, a fresh analysis was “both necessary and appropriate” (Reeves, para 97).
According to the Court in R v Grant, 2009 SCC 32, the test for determining the admissibility of unconstitutionally obtained evidence requires assessing whether “its admission would bring the administration of justice into disrepute” (Reeves, para 96). This involves three broad inquiries: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits (para 96).
In his analysis, Justice LaForme acknowledged that “[t]his is a borderline case,” with the first inquiry militating in favour of admissibility – the sole Charter breach occurred as a result of the unintentional delay by the police in following proper procedure pursuant to the Code and thus was not “particularly serious” – and the second militating in favour of exclusion – the intrusion was into a “deeply private digital sphere” and therefore “the breach had a high impact on Reeves’ Charter protected privacy interests” (Reeves, paras 105-106, 109).
As such, the conclusion hinged on the third inquiry: Society’s interest in the adjudication of the case on its merits. In light of the Court’s recent emphasis on “the social importance of prosecuting the sexual exploitation of children,” Justice LaForme held that exclusion of the evidence was not warranted and a new trial should thus be ordered (Reeves, para 108; citing R v KRJ, 2016 SCC 31, para 66).
Overall, I tend to agree with Justice LaForme’s analysis and his decision to admit the evidence – society is rightly heavily invested in the protection of children. At the same time, it should be difficult for society to stomach the breach of any Charter rights, particularly where those breaches result in the discovery or production of inculpatory evidence.