Thomas Reeves Appellant v. Her Majesty The Queen, 2018 SCC 56

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, andtherefore that the appeal should be allowed. However, there is disagreement that the issue of the entry into the home should not beaddressed 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 cohabitantshould 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 canvalidly consent to a police entry into common areas of a shared residence, obviating the need for a warrant. The alternative rule — thatthe police may enter the common areas of a shared home only if they obtain consent from each and every person who lives there — isentirely unworkable. It is not objectively reasonable for a cohabitant, who shares a residence with others, to expect to be able to vetoanother cohabitant’s decision to allow the police to enter any areas of the home that they share equally.

Other persons with overlappingprivacy interests in and right to common spaces can validly permit third parties, including the police, to enter those spaces. To holdotherwise 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 theauthority to consent; the consent must be limited to shared places or things; the consent must be informed and voluntary; and the policemust 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 thepolice 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 anyevent, because the accused’s expectation of privacy was not objectively reasonable in a context where a cohabitant, his spouse, providedher consent for the police to enter common areas of the home. The reason that the entry by the police was lawful was not because theaccused’s spouse waived the accused’s Charter rights. The accused’s spouse did not waive anyone’s rights except her own.

In thecontext of a shared home, the scope of the accused’s reasonable expectation of privacy was limited in recognition of the fact that hisspouse was a first-party rights holder who should be permitted to freely exercise her rights of access and control over common areas. Theaccused’s reasonable expectation of privacy was not sufficiently capacious to afford constitutional protection against his spouse’sdecision to give the police access to common areas, particularly since he had no legal right to enter the home at the time of the policeentry.

As with the police entry into the home, the accused’s expectation of privacy with respect to the computer he shared with hisspouse was attenuated by the realities of joint ownership and use. It was not objectively reasonable for him to expect that his spousecould not exercise her own authority and control over the computer to consent to a seizure by the police. The subject matter of theseizure, that is, what the police were really after through the seizure of the computer, was only the physical device, not the data itself.

Atno point were the computer’s contents ever searched or examined by the police prior to obtaining a warrant. The law enforcementobjective in seizing the computer was simply to preserve potential evidence. The seizure did nothing to interfere with the accused’sexpectation of privacy in its informational content because that content remained private.

When the subject matter of the seizure isproperly defined as the physical computer, it is clear that it was not objectively reasonable for the accused to expect that he couldprohibit his spouse from exercising her own authority and control over the computer to consent to a police seizure. Further, it is notobjectively reasonable for the accused’s subjective expectation of privacy to act as a veto on his spouse’s ability to exercise her ownproperty rights in the physical device. The scope of the accused’s s. 8 protection is limited by the fact that the computer was jointlyowned and used by another person.

His spouse’s rights in the computer — including her property rights in the device and her right towaive her own privacy protections — would be rendered meaningless if the accused could prevent her from consenting to the physicalremoval of the computer.

Even though the entry into the home and the seizure of the computer were both lawful, the evidence should still be excludedunder s. 24(2) of the Charter based on the other violations of law in this case — specifically, the fact that the police failed to complywith ss. 489.1 and 490 of the Criminal Code by improperly detaining the computer and the fact that the search warrant was ultimatelyfound 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., (SCC), [1984]2 S.C.R. 145; R. v. Edwards, (SCC), [1996] 1 S.C.R. 128; R. v.

Dyment, (SCC), [1988] 2 S.C.R. 417;R. v. Borden, (SCC), [1994] 3 S.C.R. 145; R. v. Wills (1992), (ON CA), 12 C.R. (4th) 58; R. v.Monney, (SCC), [1999] 1 S.C.R. 652; R. v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v. Silveira, (SCC), [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, 2017SCC 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, (SCC), [1990] 3 S.C.R. 36; R. v. Vu, 2013 SCC 60, [2013] 3S.C.R. 657; R. v. Plant, (SCC), [1993] 3 S.C.R. 281; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Fearon, 2014SCC 77, [2014] 3 S.C.R. 621; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. Duarte, (SCC), [1990] 1 S.C.R.30; R. v. M. (M.R.), (SCC), [1998] 3 S.C.R. 393; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211; R. v. Belnavis, (SCC), [1997] 3 S.C.R. 341; R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525; R. v.

Grant, 2009 SCC32, [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, (SCC), [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, (SCC),[1994] 3 S.C.R. 173; R. v. Grant, (SCC), [1993] 3 S.C.R. 223; R. v. Collins, (SCC), [1987] 1 S.C.R.265; R. v. Stillman, (SCC), [1997] 1 S.C.R. 607; Dedman v. The Queen, (SCC), [1985] 2 S.C.R. 2; R.v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; Cloutier v.

Langlois, (SCC), [1990] 1 S.C.R. 158; R. v. Godoy, (SCC), [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, (SCC), [1998] 1 S.C.R. 51; R. v.Jones, 2011 ONCA 632, 107 O.R. (3d) 241; R. v. Borden, (SCC), [1994] 3 S.C.R. 145; R. v. Wills (1992), (ON CA), 12 C.R. (4th) 58; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145; R. v. M. (M.R.), (SCC), [1998] 3 S.C.R. 393; R. v. Simmons, (SCC), [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, (SCC), [1996] 1 S.C.R. 128; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v.

Quesnelle, 2014SCC 46, [2014] 2 S.C.R. 390; R. v. M. (M.R.), (SCC), [1998] 3 S.C.R. 393; R. v. Patrick, 2009 SCC 17, [2009] 1S.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), (ON CA), 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), (ON CA), 29 O.R. (3d) 321, aff’d (SCC), [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] 2S.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, 350C.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., 2015ONCJ 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 InterestClinic.

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 hisspouse. His spouse consented to the police entry into the home and the taking of the computer from a shared space. The officer did nothave a warrant. Reeves claims that the police obtained the child pornography evidence in a manner that infringed his rights under s. 8 ofthe 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 iswhether 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. 8has 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 evidencethat the claimant has engaged in criminal activity. Child pornography offences are serious and insidious, and there is a strong publicinterest in investigating and prosecuting them.

However, in applying s. 8, the question is not whether the claimant broke the law, butrather whether the police exceeded the limits of the state’s authority. The answer in this case impacts not only Reeves, but also theprivacy 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, andexcluded the child pornography evidence under s. 24(2) (2015 ONCJ 724). Reeves was acquitted at trial.

The Court of Appeal did notagree with the application judge that the police infringed s. 8 when they took the computer with the consent of Reeves’ spouse (2017ONCA 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 computerfrom his home, and that the child pornography evidence should be excluded. Although the computer was shared, Reeves maintained areasonable expectation of privacy in it. The consent of Reeves’ spouse did not nullify his reasonable expectation of privacy, or operate towaive his Charter rights in the computer.

The warrantless seizure of the computer and the search of it without a valid warrant wereunreasonable, 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 jointtitleholders and had lived with their two daughters in this home for ten years. In 2011, Reeves was charged with domestic assaultfollowing an altercation with Gravelle and her sister.

After this incident, a no-contact order was issued which prohibited Reeves fromvisiting 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 pornographyon 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 inthe home. The officer testified that he sought Gravelle’s consent because he did not believe he had reasonable grounds to obtain awarrant to search the home and seize the computer. The computer was owned and used by both spouses. Reeves was in custody onunrelated 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 thistime.

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. Thepolice found 140 images and 22 videos of child pornography on the computer. Reeves was charged with possessing and accessing childpornography. [9] The application judge, Guay J., concluded that the police had violated Reeves’ s. 8 Charter rights. First, thewarrantless search of the home and seizure of the home computer breached s. 8.

While the police obtained the consent of Reeves’ spouseto enter the home and remove the home computer, a third party cannot waive another party’s Charter rights. Reeves had a reasonableexpectation of privacy in the home and the home computer, and he did not consent to the entry of the police and the removal of thecomputer. Second, the police failed to comply with ss. 489.1 and 490 of the Criminal Code by detaining the computer for over fourmonths 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 evidenceunder s. 24(2) of the Charter given “the flagrant disregard of the accused’s

section 8 Charter rights” (para. 49). At trial, Reeves wasacquitted. [10] The Court of Appeal allowed the Crown’s appeal from the acquittal, set aside the exclusionary order, and ordered anew trial. LaForme J.A., writing for the court, determined that the entry of the police into the home and the taking of the home computerdid not violate Reeves’ s. 8 rights. He explained that, while one resident cannot waive the Charter rights of another, co-residency isrelevant in assessing a claimant’s expectation of privacy.

In this case, Reeves’ expectation of privacy in the shared spaces of the homeand the computer was “greatly diminished” (para. 59). Therefore, it was reasonable for him to expect that Gravelle would be “able toconsent to police entry into the common areas of the home or to the taking of the shared computer” (para. 62). However, the Court ofAppeal agreed with the application judge that the continued detention of the computer and the subsequent computer search both violateds. 8 of the Charter.

While noting that this was a “borderline case”, the Court of Appeal concluded that the evidence should not have beenexcluded 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.” Thepurpose of this provision is “to protect individuals from unjustified state intrusions upon their privacy” (Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 160). The s. 8 analysis is geared towards determining “whether in a particular situation thepublic’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy inorder 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 itemthat 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 theclaimant has a reasonable expectation of privacy, courts examine “the totality of the circumstances” (R. v. Edwards, (SCC), [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 thatperson’s consent” (R. v.

Dyment, (SCC), [1988] 2 S.C.R. 417, at p. 431 (emphasis added)). In contrast, valid consentacts 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 thoughthe claimant would ordinarily enjoy a reasonable expectation of privacy in the thing the police have taken or inspected (R. v. Borden, (SCC), [1994] 3 S.C.R. 145, at pp. 160-62; R. v. Wills (1992), (ON CA), 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 thispresumption (Hunter, at p. 161; R. v. Monney, (SCC), [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 isreasonable” (R. v. Collins, (SCC), [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) enteringthe shared home without a warrant; and (2) taking the shared computer without a warrant.

The Court of Appeal agreed with theapplication judge that the police infringed Reeves’ Charter rights by detaining the computer and subsequently searching it, and theCrown now concedes these points. [16] In his written submissions, the appellant, Reeves, argues that the search of his home and the seizure of the homecomputer violated his rights under s. 8 of the Charter. He had a reasonable expectation of privacy in the home and computer and hisspouse’s consent did not render the police’s conduct Charter-compliant.

Concluding otherwise would be contrary to this Court’srejection 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, aperson 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, butsubmitted 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 homeand taking the home computer.

The Charter permits police to access shared places without a warrant when they act on the consent of aparty who has a privacy interest in the place that is equal to and overlapping with the privacy interests of the other co-residents. Aconsent search or seizure is not a “search or seizure” within the meaning of the Charter. It is not reasonable for one cohabitant to expectthat his or her right to exclude others will trump another cohabitant’s right to admit others.

While one cohabitant cannot waive anothercohabitant’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 ownersor occupants constituted a search of those premises for

section 8 Charter purposes” (para. 11). He noted the police officer entered theshared 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 Gravellecould 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 conclusionson the other issues raised in this case, it is not necessary for me to decide whether the entry into the home constituted a separate violationof 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.

Section489(2) of the Criminal Code provides that a police officer “who is lawfully present in a place pursuant to a warrant or otherwise in theexecution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds” was used in the commissionof an offence or would afford evidence of an offence. Here, however, this

section was not available; the officer testified that he asked forGravelle’s consent to seize the computer because he did not believe he had grounds to obtain a warrant. Irrespective of whether theofficer 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.

Assuch, 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 manycompeting considerations arise in determining whether and when police entry into a shared home on the consent of one resident violatesthe Charter. [24] Of course, the law has long recognized the prime importance of privacy within our homes (R. v. Silveira, (SCC), [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, ifa resident cannot consent to police entry to a shared home without the consent of all the other residents, it could undermine the dignityand 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 commonareas 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 ofimportant questions. Would police also be authorized to search common areas of the home? Should the privacy interests of otherresidents 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 Charterraises complex questions that require a considered response. They are best answered in a case that directly turns on this issue, with thebenefit 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 computerwithout a warrant but with Gravelle’s consent. There is a presumption that the taking of an item by the police without a warrant violatess. 8 of the Charter unless the claimant has no reasonable expectation of privacy in the item or has waived his Charter rights. I start byassessing whether Reeves had a reasonable expectation of privacy in the shared computer.

[28] 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” (Edwards, at para. 45(5)). In particular, they must determine (1) the subject matter of the allegedseizure; (2) whether the claimant had a direct interest in the subject matter; (3) whether the claimant had a subjective expectation ofprivacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable (Cole, at para. 40; R. v.Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 11).

The reasonable expectation of privacy standard is normative, rather thandescriptive (Tessling, at para. 42; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 18; R. v. Patrick, 2009 SCC 17, [2009] 1S.C.R. 579, at para. 14). The question is whether the privacy claim must “be recognized as beyond state intrusion absent constitutionaljustification if Canadian society is to remain a free, democratic and open society” (R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, atpara. 87, per Doherty J.A.).

Further, the inquiry must be framed in neutral terms — “[t]he analysis turns on the privacy of the area or thething being searched and the impact of the search on its target, not the legal or illegal nature of the items sought” (Spencer, at para. 36;see also R. v. Wong, (SCC), [1990] 3 S.C.R. 36, at pp. 49-50; Patrick, at para. 32). [29] Turning first to the subject matter of the alleged seizure, in oral argument, the Crown distinguished between thetaking of the physical hardware and a subsequent search of the computer’s data, which, in this case, occurred pursuant to a searchwarrant.

However, this Court has held that the subject matter must not be defined “narrowly in terms of the physical acts involved or thephysical space invaded, but rather by reference to the nature of the privacy interests potentially compromised by the state action”(Marakah, at para. 15, citing Ward, at para. 65). The guiding question is “what the police were really after” (Marakah, at para. 15, citingWard, at para. 67). [30] Here, 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.

I acknowledge that the police could not actually search the data until they obtained awarrant (see R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 3 and 49). Nevertheless, while the privacy interests engaged by aseizure may be different from those engaged by a search, Reeves’ informational privacy interests in the computer data were stillimplicated by the seizure of the computer.

When police seize a computer, they not only deprive individuals of control over intimate datain which they have a reasonable expectation of privacy, they also ensure that such data remains preserved and thus subject to potentialfuture state inspection. [31] Thus, I disagree with the Court of Appeal’s assertion that “[s]eizing the computer did not interfere with Reeves’heightened expectation of privacy in its informational content; it did not imperil any of his legitimate interests, beyond mere propertyrights” (para. 61).

Clearly, the police were not after the physical device (to collect fingerprints on it, for example), but rather sought topreserve and permit access to the data it contained. To focus exclusively on the property rights at issue (that is, on Reeves’ interest in thecomputer) neglects the important privacy rights in the data that are also engaged by the seizure. [32] Reeves undoubtedly had a direct interest and subjective expectation of privacy in the home computer and the data itcontained. He used the computer and stored personal data on it (see Cole, at para. 43). The computer was password-protected.

Thethreshold for establishing a subjective expectation of privacy is low (Marakah, at para. 22). [33] The final question is whether Reeves’ subjective expectation of privacy was objectively reasonable.

Section 8 seeksto protect “a biographical core of personal information which individuals in a free and democratic society would wish to maintain andcontrol from dissemination to the state” (R. v. Plant, (SCC), [1993] 3 S.C.R. 281, at p. 293). Although a seizure of acomputer may be less intrusive than a search of its contents, both engage important privacy interests when the purpose of the seizure is togain access to the data on the computer. Privacy includes “control over, access to and use of information” (Spencer, at para. 40).

Thus,the personal or confidential nature of the data that is preserved and potentially available to police through the seizure of the computer isrelevant in determining whether the claimant has a reasonable expectation of privacy in it (Marakah, at para. 32). [34] Personal computers contain highly private information. Indeed, “[c]omputers often contain our most intimatecorrespondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes,and propensities” (R. v.

Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 105; see also Vu, at paras. 40-41; Cole, at paras. 3 and 47-48).Computers act as portals — providing access to information stored in many different locations (Vu, at para. 44; R. v. Fearon, 2014 SCC77, [2014] 3 S.C.R. 621, at paras. 131-32). They “contain information that is automatically generated, often unbeknownst to the user”(Vu, at para. 42). They retain information that the user may think has been deleted (Vu, at para. 43).

By seizing the computer, the policedeprived Reeves of control over this highly private information, including the opportunity to delete it. They also obtained the meansthrough which to access this information. Indeed, these are the reasons why the police seized the computer. [35] Given the unique privacy concerns associated with computers, this Court has held that specific, prior judicialauthorization is required to search a computer (Vu, at para. 2) and that police officers cannot search cell phones incident to arrest unlesscertain conditions are met (Fearon, at para. 83).

The unique and heightened privacy interests in personal computer data clearly warrantstrong protection, such that specific, prior judicial authorization is presumptively required to seize a personal computer from a home.This presumptive rule fosters respect for the underlying purpose of s. 8 of the Charter by encouraging the police to seek lawful authority,more accurately accords with the expectations of privacy Canadians attach to their use of personal home computers and encourages morepredictable policing. [36] The Crown’s submissions and the Court of Appeal’s analysis emphasize the fact that Reeves shared control over,and access to, his computer with others.

I accept that control is also relevant in assessing whether a subjective expectation of privacy isobjectively reasonable (Marakah, at para. 38). Reeves’ control over the computer was limited, as compared to someone who is the soleuser of a personal computer. He shared the computer with his spouse and, at the time of the seizure, he could only access the home(where the computer was stored) with her consent, which had been revoked. As this Court has recognized, “in certain circumstances,sharing control of subject matter diminishes an individual’s privacy interest therein” (Marakah, at para. 68).

I agree with the Court ofAppeal that Reeves’ shared control over his home computer diminished his privacy interest in it. [37] That said, “control is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to aprivacy interest” (Marakah, at para. 38). On numerous occasions, this Court has recognized a reasonable expectation of privacy in placesand things that are not exclusively under the claimant’s control. In R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, it held that a person

had a reasonable expectation of privacy in a bus depot locker where he had stored and locked belongings, even though a company ownedthe lockers and could access them at any time (paras. 22-23). In Cole, it held that an employee had a reasonable expectation of privacy inthe data he stored on his work computer, even though “both policy and technological reality deprived him of exclusive control over —and access to — the personal information he chose to record on it” (para. 54; see also Marakah, at paras. 38-45). Shared control does notmean no control.

By choosing to share a computer with others, people do not relinquish their right to be protected from the unreasonableseizure of it. [38] In any event, lack of control is not fatal to finding a reasonable expectation of privacy (Marakah, at para. 38). AsMoldaver J. stated in Marakah, “[w]here a loss of control over the subject matter is involuntary, such as where a person is in policecustody or the subject matter is stolen from the person by a third party, then a reasonable expectation of personal privacy may persist”(para. 130).

Here, Reeves was in police custody when the computer was seized and he was restrained from accessing the house by courtorder. At no point did Reeves voluntarily relinquish control of his personal computer. Any resulting lack of control over the computertherefore cannot be said to be voluntary. [39] Like control, ownership is relevant, but not determinative, in assessing whether a subjective expectation of privacy isobjectively reasonable (Edwards, at para. 45(6)(iii); Cole, at para. 51). The joint ownership of the computer does not render Reeves’subjective expectation of privacy objectively unreasonable.

Indeed, in Cole, this Court concluded that the accused had a reasonableexpectation of privacy in a work computer, even though the device and the data were owned solely by his employer (paras. 50-51 and58).

(3) Gravelle’s Consent to the Police Seizure of the Shared Computer [40] The Crown further submits that, because Reeves’ spouse had an equal and overlapping privacy interest in thecomputer, its removal with her consent did not constitute a “seizure” within the meaning of the Charter. In the Crown’s view, it isreasonable to recognize that a co-user of a device can permit police access in her own right, so a claimant’s reasonable expectation ofprivacy is not violated when this right is exercised.

Similarly, the Court of Appeal held that “[i]t was not reasonable for Reeves to expect[his spouse] would not be able to consent to . . . the taking of the shared computer” (para. 62). Effectively, these arguments mean eitherthat Reeves had no reasonable expectation of privacy in the computer when it was taken by the police, or that his spouse’s consentoperated to waive Reeves’ Charter rights.

I will deal with these two propositions in turn. [41] I cannot agree with the first proposition — that Reeves had no reasonable expectation of privacy in the computer.The consent of Reeves’ spouse cannot nullify a reasonable expectation of privacy that he would otherwise have in the shared computer.Admittedly, when we share a computer with other people, we take the risk that they will access information we hoped to keep private.They may wish to share the information they find with others, including the police. But, as noted above, the reasonable expectation ofprivacy standard is normative, not descriptive.

The question is not which risks the claimant has taken, but which risks should be imposedon him in a free and democratic society. [42] Thus, in R. v. Duarte, (SCC), [1990] 1 S.C.R. 30, this Court concluded that the surreptitiouselectronic surveillance of a conversation by the police without a warrant violated s. 8 of the Charter, even if one of the participants in theconversation had consented to the surveillance.

In reaching this conclusion, the Court distinguished between the “tattletale” risk (the riskthat someone will tell the police what you said) and the risk that someone will consent to the police making an electronic record of yourwords (p. 48).

The Court concluded that “[t]hese risks are of a different order of magnitude” — the tattletale risk is one that is reasonableto ask citizens to bear in a free and democratic society, whereas the surveillance risk is not (p. 48). [43] Similarly, while it is reasonable to ask citizens to bear the risk that a co-user of their shared computer may accesstheir 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 couldconsent to the police taking this computer.

In Marakah, this Court held that, when a claimant shares information with another personthrough a text message, he accepts the risk that this information may be disclosed to third parties. But that does not mean the claimant“give[s] up control over the information or his right to protection under s. 8” (para. 41). [44] I cannot accept that, by choosing to share our computers with friends and family, we are required to give up ourCharter protection from state interference in our private lives. We are not required to accept that our friends and family can unilaterallyauthorize police to take things that we share.

The decision to share with others does not come at such a high price in a free anddemocratic society. As the intervener Criminal Lawyers’ Association (Ontario) pointed out, such an approach to s. 8 may alsodisproportionately impact the privacy rights of low income individuals, who may be more likely to share a home computer. [45] The Crown argues that failing to recognize Gravelle’s right to consent to the taking of the computer grantsinsufficient protection to her privacy rights. It submits that privacy is not just a right to exclude, but also a right to admit.

I disagree.Although the legitimate interests of third parties can, in some circumstances, attenuate a reasonable expectation of privacy (see R. v. M.(M.R.), (SCC), [1998] 3 S.C.R. 393, at paras. 31-34; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 109,per McLachlin C.J. and Fish J., dissenting, but not on this point), they cannot eliminate it. I would note that Gravelle was of course freeto, and did, notify the police about what she saw on the computer. Further, while Gravelle also had a reasonable expectation of privacy inthe computer data, she is not the claimant in this appeal.

This Court has acknowledged that several parties can have a reasonableexpectation of privacy in the same place or thing, and thus distinct s. 8 Charter claims (R. v. Belnavis, (SCC), [1997] 3S.C.R. 341, at paras. 19-25). [46] The Crown also argues that rejecting its approach will prevent victims of crime who have received threatening orharassing text messages from showing them to the police.

However, the issue of whether s. 8 of the Charter is engaged when a privatecitizen offers information or an item to the police in which another person may have a reasonable expectation of privacy does not arise inthis case (see Marakah, at para. 50; Dyment, at p. 432; R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at paras. 21-35).

Indeed, Gravelle did not bring the computer to the police, but rather signed a consent form authorizing them to take it. (She testifiedthat she signed the form because she did not think she had a choice.) The issue of whether s. 8 is engaged when a citizen voluntarilybrings an item to the police remains for another day. This case deals squarely with the taking of a computer by the state.

[ 47 ] In short, in light of the deeply intimate nature of information that can be found on a personal computer, Reeves’ 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’ 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 (see Buhay , at para. 22 ). Indeed, “[a] reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter ” ( Cole , at para. 9 ). [ 48 ] I turn now to the alternative proposition that underlies 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’ Charter rights were waived. The Crown’s argument 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. This would be inconsistent with this Court’s decision in Cole . [ 49 ] This Court has long held that a claimant can waive his or her s. 8 Charter rights by consenting to a search or seizure ( Borden , at p. 162).

In addition, “[t]he force of the consent given must be commensurate with the significant effect which it produces” ( Borden , at p. 162, citing Wills , at p. 72). [ 50 ] In Cole , this Court considered whether this first-party consent doctrine should be extended to third parties. A school board had discovered child pornography files on the work computer of the accused, a teacher. The school board consented to a warrantless search and seizure of the computer by the police.

The Crown argued that the taking of the computer and the examination of its data by the police complied with the Charter because the school board (a third party) could waive the accused’s privacy rights. This Court rejected this argument, concluding that the doctrine of third-party consent should not be adopted in Canada, despite its acceptance in the United States.

Cole explains that this doctrine would be “inconsistent with this Court’s jurisprudence on first party consent”, which requires consent to be “voluntarily given by the rights holder” and “based on sufficient information in his or her hands to make a meaningful choice” (paras. 77-78 (emphasis in original)). The Court also held that the adoption of this doctrine in the United States was based on the type of “risk analysis” that had been rejected in Duarte ( Cole , at paras. 75-76 ) .

The approach in Cole aligns with Wong , where this Court held that video surveillance of a hotel room violated the occupant’s rights under s. 8 of the Charter , even though the hotel management had agreed to the surveillance (pp. 42 and 52). [ 51 ] The Crown endeavors to distinguish Cole by arguing that Gravelle is not a “true” third party because she had an equal and overlapping privacy interest in the computer.

In contrast, in Cole the school board was a true third party because it did not have a privacy interest in the personal data the accused stored on the computer. [ 52 ] In my view, Cole cannot be distinguished on this basis. There was no suggestion in Cole that the school could not consent to the search because it had no equal and overlapping privacy interests in the computer. While Gravelle undoubtedly has constitutionally-protected privacy interests in the shared computer, this does not entitle her to relinquish Reeves’ constitutional right to be left alone ( Cole , at para. 78 ; see also Borden , at p. 162).

Waiver by one rights holder does not constitute waiver for all rights holders. This Court has set a high bar for first-party consent because waiving s. 8 rights has significant consequences ( Borden , at p. 162). It insists that consent must be informed and voluntary because it wants to ensure that a waiver by the holder of a Charter -protected right is an expression of his or her free will.

Allowing Gravelle’s consent to waive Reeves’ rights is completely inconsistent with this jurisprudence. [ 53 ] As the intervener Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic aptly remarked, although the privacy interests of co-occupants or co-users over some shared premises or items may be “overlapping”, it does not follow that those interests are “coextensive”.

Indeed, where the consent giver and the claimant are not the same person, the s. 8 Charter inquiry does not concern the legitimacy of the former’s privacy interests in the subject matter of the search or seizure, but rather the latter’s expectation of privacy in it. [ 54 ] I recognize that rejecting the Crown’s approach may interfere with criminal investigations. But Charter rights often do. Judicial pre-authorization protects the unique and heightened privacy interests in home computers. At the same time, in appropriate circumstances, police may exercise other common law powers.

For example, in exigent circumstances, police may conduct warrantless seizures (see s. 487.11 of the Criminal Code ). [ 55 ] Further, adopting the Crown’s approach based on equal and overlapping privacy interests would raise practical issues. Before taking a computer, it may be difficult, if not impossible, for police to know whether the privacy interests in the data they are after are “equal and overlapping,” and thus whether the taking would be Charter -compliant if the consent of only one user was obtained.

Additionally, it is unclear how police could proceed if the target of the investigation were at home when the police arrived, and explicitly refused to consent to the computer’s removal. [ 56 ] For these reasons, the taking of the computer without Reeves’ consent interfered with his reasonable expectation of privacy and thus constituted a seizure within the meaning of the Charter ( Cole , at para. 59 ). A warrantless seizure is presumptively unreasonable, and the burden falls to the Crown to rebut this presumption ( Hunter , at p. 161; Monney , at para. 29 ).

Indeed, 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 Crown has not endeavored to rebut the presumption in this case, as it relies on Gravelle’s consent to show that no seizure occurred. [ 57 ] Further, 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.

In Vu , this Court held that, while a warrant to search a place generally entitles police to search anything they find in that place, this is not true for computers (paras. 23-24). Given the unique privacy concerns that computers raise, Vu specifies 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. [Emphasis added; para. 3; see also para. 49.] As the police did not have a warrant to search the home in this case, Vu does not authorize the seizure of the device. [ 58 ] In short, 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’ rights under s. 8 of the Charter . B.

Should the Evidence Be Excluded Under Section 24(2) of the Charter ? [ 59 ] Under s. 24(2), evidence obtained in a manner that infringed Charter rights “shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”. In this analysis, courts must consider (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 ( R. v.

Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353, at para. 71 ). [ 60 ] The application judge determined that the evidence should be excluded under s. 24(2). The Court of Appeal conducted a fresh Grant analysis, given its determination that the application judge erred in concluding that the entry into the home and the taking of the home computer violated s. 8 of the Charter . It assessed whether the computer evidence should be excluded on the basis of the two other Charter breaches — the detention of the computer in violation of ss. 489.1 and 490 of the Criminal Code and the computer search without a valid warrant .

The Court of Appeal noted that these breaches had a significant impact on Reeves’ Charter - protected privacy interests and that this was “a borderline case” (para. 109). However, it ultimately concluded “that the repute of the administration of justice would be undermined more than bolstered by excluding the evidence” (para. 109).

It therefore set aside the application judge’s exclusionary order. [ 61 ] I agree with the application judge that the seizure of the home computer breached s. 8 of the Charter and that the computer evidence should be excluded. [ 62 ] Although I am assuming (without deciding the issue) that the police entry was lawful, I agree with the application judge that the Charter -infringing state conduct in this case was serious.

With respect to the seizure of the shared computer, while the officer believed that Gravelle’s consent allowed him to take it, the police service had a specialized cyber-crime unit that should have been aware of the unique and heightened privacy interests in computers. The unit also should have known that a third party cannot waive another party’s Charter rights.

Although this Court’s decision in Cole was released only a few days before the computer was seized in this case, the Ontario Court of Appeal decision in Cole , which found the school board could not consent to the search of an employee’s computer, was released over a year earlier. [ 63 ] With respect to the other Charter breaches found in the courts below, the officer could not explain why the police had detained the computer for months without respecting the reporting requirements in ss. 489.1 and 490 of the Criminal Code .

Under s. 489.1, police must report a warrantless seizure to a justice “as soon as is practicable”. Under s. 490(2), the seized item cannot be detained for over three months unless certain conditions are met. In this case, the police only made a report to a justice as required by s. 489.1 of the Criminal Code after the computer was searched and almost five months after it was initially seized . These reporting requirements are important for Charter purposes, as they mandate police accountability for seizures that have not been judicially authorized (see R. v.

Tse , 2012 SCC 16 , [2012] 1 S.C.R. 531 , at paras. 82 and 84 ). [ 64 ] Additionally, as in Morelli , the ITO upon which the search warrant was obtained was “[a]t best . . . improvidently and carelessly drafted” (para. 100).

The application judge concluded that the computer search breached the Charter because the ITO reflected “‘a goal-oriented, selective presentation of the facts’ that resulted in an ‘unfair, unbalanced and misleading’ portrayal of the applicant” and was insufficient to have justified granting the warrant (para. 38). [ 65 ] In short, there were serious Charter breaches throughout the investigative process.

Overall, the police conduct in this case undermined “public confidence in the rule of law” and favours exclusion of the evidence ( Grant , at para. 73). [ 66 ] I see no reason to disturb the application judge’s conclusion that the state conduct had a serious impact on Reeves’ Charter -protected interests. The fact that Reeves had a reduced reasonable expectation of privacy in the home computer diminishes the seriousness of the unreasonable search and seizure of this computer ( Cole , at paras. 91-92 ; Grant , at para. 78; R. v. Paterson , 2017 SCC 15 , [2017] 1 S.C.R. 202 , at para. 49 ; J. A. Fontana and D.

Keeshan, The Law of Search and Seizure in Canada (10th ed. 2017), at p. 23). Nonetheless, as this Court held in Morelli , “[i]t is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer”, given the extremely private nature of the data that a personal computer may contain (para. 2; see also para. 105). [ 67 ] With respect to society’s interest in the adjudication of this case on its merits, I agree with the application judge that it was strong.

The unconstitutional search and seizure of the computer revealed reliable evidence that was important to the prosecution’s case (see Grant , at paras. 81 and 83). Further, as the application judge and the Court of Appeal both noted, the alleged offences were serious. Child pornography offences are “particularly insidious” ( Morelli , at para. 8 ). Cases in which a court must decide whether to exclude probative evidence of a serious crime are always challenging.

However, the seriousness of the offence “has the potential to cut both ways” in assessing whether evidence should be excluded ( Grant , at para. 84; see also Paterson , at para. 55 ).

Indeed, “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach” ( Grant , at para. 84). [ 68 ] Ultimately, the application judge concluded that, despite society’s strong interest in the adjudication of this case on the merits, the evidence should be excluded due to “the flagrant disregard of the accused’s

section 8 Charter rights” (para. 49). This approach aligns with Paterson , where this Court remarked that “[i]t is . . . important not to allow the third Grant 2009 factor of society’s interest in adjudicating a case on its merits to trump all other considerations, particularly where (as here) the impugned conduct was

serious and worked a substantial impact on the appellant’s Charter right” (para. 56). Given the seriousness of the state conduct and of itsimpact on Reeves’ Charter-protected interests, I agree with the application judge that the admission of the evidence would bring theadministration of justice into disrepute. IV. Conclusion [69] For these reasons, I would allow the appeal, set aside the judgment of the Court of Appeal, exclude the evidenceobtained from the seizure and subsequent search of Reeves’ computer, and restore the acquittal entered at trial.

The following are the reasons delivered by [70] Moldaver J. — I have read the reasons of my colleague, Justice Karakatsanis for the majority, and I am in substantialagreement with her analysis and conclusion. In particular, I agree that Mr. Reeves had a reasonable expectation of privacy in the sharedcomputer and that, in the circumstances, its warrantless seizure constituted a breach of his rights under s. 8 of the Canadian Charter ofRights and Freedoms, despite Ms. Gravelle’s consent.

I further agree, for the reasons expressed by my colleague, that the resultingevidence should be excluded under s. 24(2). [71] My purpose in writing this concurrence is to express some tentative views on the issue of police entry into a sharedresidence, a matter of considerable importance to the administration of criminal justice — and one which Parliament has to date leftunaddressed. I. Should the Court Accept Counsel’s Concession? [72] As the majority notes, counsel for Mr. Reeves conceded during oral submissions before this Court that he was notchallenging the police entry into the Reeves-Gravelle residence.

Counsel explained that characterizing police entry into a home for thepurpose of interviewing a witness as a “search” for s. 8 purposes “would be a tough argument . . . to make” (transcript, at p. 38). Thejurisprudence, however, defines a “search” under s. 8 as any state action that intrudes upon a reasonable expectation of privacy: see, e.g.,R. v. Evans, (SCC), [1996] 1 S.C.R. 8, at para. 11; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 16; R. v.Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18; and H.

Stewart, “Normative Foundations for Reasonable Expectations ofPrivacy” (2011), 54 S.C.L.R. (2d) 335, at p. 335. That being so, the effect of counsel’s concession could be taken to mean that Mr.Reeves lacked a reasonable expectation of privacy in the common areas of his home — a contentious proposition to be sure, albeit onewhich my colleague Justice Côté has assiduously considered and resolved against Mr. Reeves, in favour of the state. [73] This Court, of course, is not bound by counsel’s concession. Evaluating whether to accept it in this case necessitatesa particularly cautious approach for two reasons.

First, the issue is an important one. The police entry into the Reeves-Gravelle residenceon the strength of Ms. Gravelle’s consent was the catalyst giving rise to a chain of events that culminated in the discovery of childpornography on the shared computer. If the entry contravened s. 8, it follows that the evidence discovered during the search of thecomputer was “obtained in a manner that infringed or denied” Mr. Reeves’ rights, bringing it within s. 24(2)’s exclusionary reach: see,generally, R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, at p. 209; R. v.

Grant, (SCC), [1993] 3 S.C.R. 223,at p. 255. [74] Second, the legality of the police entry has implications beyond the four corners of this case. Police frequently attendresidences to investigate suspected or ongoing criminal activity. Many of those residences are inhabited by more than one person withauthority to permit third parties to enter the home.

Counsel’s concession that police entry into a shared residence is not a “search”therefore has the potential to affect a large swath of Canadian society by shifting our understanding of the right to be free fromunreasonable search or seizure. [75] In sum, counsel conceded an important issue, with broad implications beyond this case. In these circumstances, I amof the view that caution is warranted in deciding whether to accept counsel’s concession.

That said, the importance of the entry, inparticular, its legality — as it relates to this case and the permissible scope of police power more generally — provides a compellingreason to consider the issue. While I am prepared to accept counsel’s concession that the entry in this case was lawful — I offer analternate route as a possible basis for so concluding, namely: that the police conceivably had the authority to enter the shared residence atcommon law under the ancillary powers doctrine. Let me explain. II.

The Common Law Power to Enter a Shared Residence to Take a Statement [76] I accept for the purpose of this analysis that Mr. Reeves had a reasonable expectation of privacy in the commonareas of the home that he and Ms. Gravelle jointly owned and that Ms. Gravelle’s consent to the police entry did not serve to negate thatexpectation. The police entry was therefore a “search” within the meaning of the Charter and it will only have complied with s. 8 if itwas authorized by law, if the law was reasonable, and if the search was carried out in a reasonable manner: R. v.

Collins, (SCC), [1987] 1 S.C.R. 265, at p. 278; R. v. Stillman, (SCC), [1997] 1 S.C.R. 607, at para. 25. What follows is atentative articulation of the lawful authority under which the police officer acted when he entered the residence to take Ms. Gravelle andher sister’s statements. I say “tentative” because the paradigm I am proposing was not raised by the parties.

Therefore, any finaldetermination of whether police may lawfully enter a joint residence when invited by one of the occupants must be left for another day. [77] Whether police have the authority at common law to take an action that interferes with an individual’s liberty orproperty is assessed using the framework set out by the U.K. Court of Criminal Appeals in R. v. Waterfield, [1963] 3 All E.R. 659, at pp.660-62, per Ashworth J. Canadian courts have used the Waterfield framework — sometimes referred to as the ancillary powers doctrine— to affirm many common law police powers now considered fundamental.

For example, the R.I.D.E. program stops (Dedman v. TheQueen, (SCC), [1985] 2 S.C.R. 2), investigative detentions (R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59), searchesincident to arrest (Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158), 911 home entries (R. v. Godoy, (SCC), [1999] 1 S.C.R. 311), sniffer dog searches (R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456), and safety searches (R. v.MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37) were all affirmed through the Waterfield framework.

[ 78 ] As this Court explained in MacDonald , at paras. 34-37 , the Waterfield analysis proceeds in two stages:

(1) Does the police conduct at issue fall within the general scope of their statutory or common law duties? Common law duties include keeping the peace, preventing crime, and protecting life and property.

(2) Does the conduct involve a justifiable use of police powers associated with that duty? The conduct is justifiable if it is reasonably necessary, with regard to: (

a) the importance of the performance of the duty to the public good; (

b) the necessity of the interference with an individual’s liberty or property for the performance of the duty; and (

c) the extent of the interference. [ 79 ] Commencing with stage one, there can be no doubt that 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. Investigating crime is a primary police function: Kang-Brown , at para. 52 , per Binnie J., concurring. Police officers in Ontario are statutorily duty-bound to encourage crime prevention within the community, apprehend criminals, and assist victims of crime: Police Services Act , R.S.O. 1990, c. P.15, s. 42(1).

Entering a home to take a witness statement in connection with a criminal investigation furthers all three of these mandates. [ 80 ] Turning to stage two, in my view, the proposed power may well be a reasonably necessary interference with individuals’ privacy interests in their homes. The ability to enter into a home to take a statement when invited serves an important investigative function. As I have noted, police officers routinely seek to make contact with individuals within their homes.

At times, the police themselves initiate contact with the occupant — for example, when canvassing a neighbourhood for information about a violent crime perpetrated in the area. This routine investigative tactic can yield fruitful information that would otherwise have eluded police: see, e.g., R. v. Bui , 2002 BCSC 289, [2002] B.C.J. No. 3185 (QL), at para. 10 . [ 81 ] The importance of taking a statement in connection with a criminal investigation becomes even more apparent when a resident contacts the police to provide information about past or ongoing criminal activity within the home.

In some cases, the reporting resident is the victim of a crime committed by a co-resident, such as the spouse who calls the police to report that her partner has physically abused her. The reporting resident may also contact the police to provide information about harmful activities or items present in the home, such as a concerned spouse who believes there may be

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