Criminal Law

Presser acts for intervener in landmark SCC digital data case win

By Kathy Rumleski, Contributor

The Supreme Court of Canada’s (SCC) recent landmark decision is important because it ensures protection of Canadians’ privacy rights when it comes to digital material stored on a shared computer, says Toronto criminal lawyer Jill Presser, who acted as counsel for an intervener in the case.

“(The intervener's) position — and the court accepted it — is that the way we access and store information online supports the finding that we do expect our digital movements to be private, even when sharing an electronic device,” says Presser, principal of Presser Barristers, who appeared before the SCC with colleague Kate Robertson.

“Given how widespread digital communication is, this decision will have far-ranging impact,” she tells

Presser says the case involved a Sudbury man who was convicted of domestic assault following an altercation with his common-law spouse and her sister.

When his wife later suspected that he was storing child pornography on the shared home computer, police became involved.

An officer came to the house without a warrant while the man was in custody. The wife signed a consent form authorizing the seizure of the computer, which police took away and stored, she says.

The man was eventually charged with accessing and possessing child pornography, but counsel for the husband argued that police had violated his s. 8 Charter right against unreasonable search and seizure, Presser says.

“The acquittal of the man was restored by the SCC.”

She says the Crown asked the Supreme Court to revisit another ruling to a degree. “In that case, the SCC rejected the authority of a third-party employer to consent to a search of a work-owned laptop."

“Even more so than the employer issuing a laptop in that case, co-habitants share access to an array of intimate information regarding each other’s lives,” Presser wrote in the factum before the SCC.

The intervener, a public interest technology law clinic, feels the court’s decision is important for a couple of reasons, she adds.

“The practical reality is that many Canadians can’t afford to have multiple devices within a single home. There may be one computer, and each person has their own files and data on it,” Presser says.

“Sharing the computer doesn’t mean they no longer expect their own digital communications to be private.”

She says the other reason the intervener stepped forward is because of the expansion and proliferation of household information.

“We argued that it’s not just our computers that store important electronic information about us and our lives,” Presser says.

The decision has implications that go far beyond computers, tablets and smartphones, she says, and applies to all kinds of different media that generate household electronic information.

“We argued that while computers are the frontline generator of household electronic information, that category extends to smart-home devices and wireless network,” Presser says.

People we co-habit with may be able to access records of our online movements and metadata may be available, she says.

“Metadata is data about data transmission, and search information, browser history. What we know about metadata is that while it is not by itself content, enough of it strung together starts to look like content.”

Presser also relayed to the Supreme Court is that her client is concerned about information that is collected by internet-enabled electronic devices in the home.

“They collect information about our use patterns and our preferences and are communicating that to a website. That information may be revelatory about a biographical core of information.”

She says the latest top court ruling ensures co-habitants can’t share this information with the state.

“The decision is incredibly important also because of how much information we are now generating,” Presser says.

“When that is in the home and accessible to our co-habitants, we still have not only a subjective expectation of privacy but an objectively reasonable expectation of privacy that can’t be defeated.”

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