On December 13, 2018, the Supreme Court of Canada confirmed that a third party can't waive a person's right to privacy or their rights under Canada's Charter of Rights and Freedoms in the contents of a personal computer – even where that third party co-owns it and also has a privacy interest in its contents.
The Court's decision in R. v. Reeves is reminiscent of its 2012 decision in R. v. Cole. There, an employer found pornography on an employee's computer that the employer owned, but the Court found the employee still had a reasonable expectation of privacy. In both cases, the Court concluded a third party – neither a joint owner, nor the employer and absolute owner – couldn't consent to seizure of the computer or waive the privacy interest of another person who had a reasonable expectation of privacy in the contents. Both cases confirm that courts accord a high level of privacy to computer contents. And both confirm that ownership of a computer – whether total or joint – isn't determinative of the existence of another's reasonable expectation of privacy (or lack of) in the computer's contents: it's only one of a number of factors.
While both decisions are specific to police investigative powers in the context of criminal offences, computer usage is a given in almost all workplaces. It's critical that employers recognize the ease with which an employee's use of employer-owned devices give rise to an expectation of privacy, and act to minimize that expectation: implement a workplace policy that's clear these devices aren't for personal use, the employer will monitor usage, and employees should not expect privacy in any information stored on them.
The Decision. Police seized Reeves' personal computer from his home, which he shared with his wife, as part of a criminal investigation. There was no search warrant: Reeves wasn't home at the time of the search (he was in jail on other, unrelated charges) and wasn't aware of the police activity; his wife consented to police taking the computer, which she also owned. Police found child pornography on the computer and charged Reeves. Reeves challenged the seizure as illegal and in breach of his right to freedom from unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada agreed the police obtained the evidence in a manner that breached Reeves' Charter rights and the evidence should have been excluded – and acquitted him.
- Highly Private Information. Personal computers contain highly private information, including personal correspondence, financial and medical records, and more.
- Expectation of Privacy. Reeves had a direct interest and an expectation of privacy in the home computer and the data it contained. Seizure of the computer deprived Reeves of control over his highly private information, including the opportunity to delete it. Reeves' privacy interest was somewhat diminished because his wife also owned and had control over the personal computer, but Reeves' lack of control was involuntary: he was no longer allowed at the house, and was, in fact, in police custody on unrelated charges at the time.
- Joint Ownership Insufficient to Waive. A third party can't waive someone's right to privacy or their Charter rights – not even here where that third party (his wife) is part owner of the computer and also has a privacy interest in it: her equal and overlapping privacy interest in the computer and its contents couldn't waive Reeves' rights in them.
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