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Privacy is for People, Not Things

October 10, 2019

Court applies Marakah, holds accused has expectation of privacy in wife’s surreptitiously-obtained copies of his data

In R. v. King, the accused was charged with accessing and possessing child pornography images. The accused shared a house with his wife, from whom he was estranged. At one point she suspected him of marital infidelity and, having earlier observed him putting his passcode into his phone, memorized the code. When she later unlocked the phone and looked for evidence of his infidelity, she found images she thought were child pornography. Some time later she looked through his desktop computer and one of his tablets, and found similar images. She used her phone to take pictures of some of the suspicious images displayed on all three devices, saved these pictures to a USB key, and gave the USB to the police. An officer viewed the images on the USB key and determined they might be child pornography. The police obtained a search warrants for the accused’s devices (in his house and car), and eventually seized 34 devices, 7 of which contained child pornography images. The accused made a pre-trial motion, to Judge Allan Fradsham of the Alberta Provincial Court, for a declaration that his protections against unreasonable search and seizure under s. 8 of the Charter had been violated.

While the accused’s wife was not a state agent, Judge Fradsham nonetheless analyzed whether the accused had a reasonable expectation of privacy in the images vis-à-vis the state, and whether there had been a breach of s. 8, in accordance with the Supreme Court of Canada’s decision in R. v. Marakah. He held that, “in the case at bar which involves electronic data, when determining the true subject matter of the search, one looks beyond the physical object in which the data is stored and considers the data itself and whether the accused had a reasonable expectation of privacy in that data.” Here, while the object being searched was the USB key (when the police initially viewed it), the subject matter of the search was “the collection of images on the USB drive as taken from the screens of Mr. King’s electronic devices, and what it told them about Mr. King.” That is, the target of the search was personal information about the accused. Moreover, the accused obviously had a subjective expectation of privacy in the material, given that all of his devices were password-protected.

As to whether the accused’s expectation of privacy was reasonable, Judge Fradsham first noted that the location of search was of no practical use in the analysis, since the “place” was the USB key, of which the accused had been unaware. The subject matter of the search was clearly private information, since data on an accused’s computer was generally so (R. v. Morelli), and evidence of criminal activity was something that people would have a particular interest in keeping private (R. v. Patrick). The accused had had control over the subject matter of the search, and the fact that he lost that control was not fatal to the reasonableness of his expectation of privacy:

[130] That said, control is not the exclusive consideration that informs the existence of a reasonable expectation of personal privacy. And there are exceptional cases where control is not necessary. Where a loss of control over the subject matter is involuntary, such as where a person is in police custody or the subject matter is stolen from the person by a third party, then a reasonable expectation of personal privacy may persist: see Stillman[6], at paras. 61-62 (privacy may persist in a tissue discarded while in police custody); R. v. Law, 2002 SCC 10 (CanLII), [2002] 1 S.C.R. 227, at para. 28 (privacy may persist in a safe stolen by a third party)...[quoting from Marakah, per Moldaver J]

Turning to the search, the judge noted that since the accused had a reasonable expectation of privacy in the images, he had standing to assert his s. 8 rights. While the wife had consented to the search of the USB key, as a matter of law one person could not waive another’s Charter rights. Therefore, the initial search of the USB key had been warrantless and not authorized by law, and thus unreasonable. The subsequent warrants had depended upon information obtained from the first warrantless search, and thus those searches were also unreasonable. Accordingly, the searches had breached the accused’s rights under s. 8. Arguments regarding the exclusion of the evidence under s. 24(2) of the Charter were to be heard at an unspecified future date.

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