Specialized cyber-crime unit should have been aware of unique and heightened privacy interests in computers

Accused was subject to court order to stay away from home he co-owned with his common-law spouse, unless he had spouse’s consent. Spouse revoked that consent in same phone call to accused’s parole officer in which she alleged that accused had child pornography on family computer. Police officer visited home, where spouse signed consent form for seizure of computer located in shared space. Seizure was warrantless. Police retained computer for four months without searching it, then obtained search warrant and found child pornography on it. Accused successfully brought pre-trial application under Canadian Charter of Rights and Freedoms on basis of violation of his s. 8 rights. Application judge excluded all evidence from computer under s. 24(2) of Charter. Accused was acquitted of charges of accessing and possessing child pornography. Crown successfully appealed and new trial was ordered. Accused appealed. Appeal allowed, evidence excluded and acquittal restored. State conduct was serious. Police service’s specialized cyber-crime unit should have been aware of unique and heightened privacy interests in computers and should have known that third party could not waive another party’s Charter rights. Because there were multiple serious Charter breaches throughout investigative process, police conduct undermined public confidence in rule of law.

R. v. Reeves (2018), 2018 CarswellOnt 20930, 2018 CarswellOnt 20931, 2018 SCC 56, 2018 CSC 56, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); reversed (2017), 2017 CarswellOnt 7617, 2017 ONCA 365, H.S. LaForme J.A., Paul Rouleau J.A., and David Brown J.A. (Ont. C.A.).