Context and content matters to the assessment of reasonable
expectations of privacy in criminal law matters.
Recently, in R. v. B. (C.), 2013 CarswellOnt 3851
(SCJ), P. Smith J. considered the constitutionality of a
warrantless search and seizure of a camera that was alleged to have
been used to surreptitiously film a child in the accused's
residence as well as the seizure (but not search) of the
According to the allegations, the complainant (a minor) found a
video camera in her bedroom containing naked pictures of herself.
The police were called to a relative's house and were showed
the pictures on the video camera. While the police were at the
relative's house, the accused showed up and identified the
camera. The police took the camera.
Following taking the accused into custody, the police were given
access to the accused's home by other family members and a
computer accessed by family members was seized but not
The police then obtained two warrants to search the camera and
When the accused challenged the search and seizure of the
camera, the court ruled that a video camera is different from a
mobile phone. The court concluded that a video camera does not have
the capability of storing private voice, text, e-mail
communications, detailed personal contact lists, agendas and
diaries, that are typically stored on a mobile phone. Accordingly,
the accused did not have a heightened expectation of privacy.
But, more importantly, when the contents of the camera were
first viewed by the police, the ownership of the camera was not yet
known. Moreover, any privacy interest that the accused had was, in
the court's view, "relinquished" when the accused
"decided to hide it in the bedroom" of the
Turning to the computer, the court noted that the fact that the
entrance to the house was provided by the co-owner and the computer
was commonly used by the family, including the accused, made the
seizure of the computer "incident to arrest" reasonable
in order to preserve potential evidence. The court noted that the
computer was only searched after a warrant was obtained.
Some of the reports of this case stress the judge's
conclusion that a video camera is not like a cell phone. That
certainly is part of the decision. Content matters. However,
context matters as well. The video camera here was presented by the
accused. The police were provided with the camera by the
complainant and looked at it not knowing who the owner was in order
to make a determination of whether to proceed. This is far
different from searching and seizing a camera that was under the
custody or control of the accused.
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