Criminal Law

Presser appears before SCC on digital information case

By Peter Small, Contributor

Toronto criminal lawyer Jill Presser is asking the Supreme Court of Canada (SCC) to protect citizens from having their digital information handed over to police by people with whom they share a home.

She is acting for the Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC), which is intervening in a case that centres on whether spouses and other co-residents can give third-party consent to the warrantless search and seizure of computers and other electronic devices used in common with other co-residents.

“CIPPIC takes the position that a third party, even when it’s a co-resident, can’t consent to seizure and search of electronic information by the police,” says Presser, principal of Presser Barristers.

“Even individuals who share use of a computer will have their own private information inside, to which only they are entitled to access, in respect of which they have a reasonable expectation of privacy that nobody else shares,” she tells

The case before the SCC concerns a Sudbury man who lived with his common-law spouse of 20 years and their two daughters. He had an altercation with his wife and her sister and was charged with domestic assault. He was subject to a no-contact order, after which his wife reported to his probation officer that she suspected he was storing child pornography on the home computer they both used.

As a result of her call, a police officer visited the home without a warrant while the man was in custody. During the officer’s visit, the wife signed a consent form authorizing the seizure of the computer, which police took away and stored.

Four months later, police obtained a warrant to search the computer, where they found suspect images. The man was charged with accessing and possessing child pornography.

At a pre-trial hearing in the Ontario Court of Justice, the husband argued that the police had violated his right against unreasonable search and seizure under s. 8 of the Charter. The judge agreed, excluding any evidence from the computer, which resulted in his acquittal.

The Crown appealed, and the Ontario Court of Appeal (OCA) set aside the exclusionary order and ordered a new trial. The court ruled that the trial judge erred in finding that the defendant’s spouse could not consent to the search by police of shared areas of the home and the seizure of the computer.

Although the appeal court agreed with the principle, established by the SCC, that a third party can’t waive someone else’s rights and give consent to a search of their property, it looked at the issue a bit differently when it comes to cohabitants who share computers and other electronic devices, Presser says.

“Effectively, what the Court of Appeal is saying is the minute you live with somebody else you have to expect that they’re going to consent to searches of your space and your data,” she says.

CIPPIC, a public interest technology law clinic, is concerned about the implications if the OCA decision is allowed to stand, Presser says.

Census data show that 81 per cent of Canadians cohabitate, she says.

“So if the Court of Appeal’s decision is correct in law, it means that 81 per cent of Canadians who live with someone else can have no reasonable expectation of privacy in their house or electronic information when it comes to the agents of the state or law enforcement,” Presser says.

“That’s a really troubling proposition in this day and age because not only do we have shared computers, laptops and tablets in our homes, we have all kinds of internet-enabled devices as well.”

The “internet of things” includes appliances and entertainment devices, even hearing aids and other medical-assistive equipment, Presser says.

“What that means is there is so much data about each of us in our homes now that is available potentially to a tech-savvy co-resident. And it can’t be that merely by choosing to live with another person that we are waiving all expectations of privacy.”

Most Canadians don’t even know how much information and traceable data trails they generate, she says.

“If the Court of Appeal’s decision is right in law it means that our co-residents can hand that information over to the state without our knowledge or consent. And that can’t be right,” Presser says.

CIPPIC’s concerns also extend to metadata accessible through other home devices. Metadata is information about an electronic transmission, such as the sender, receiver, the time and duration, rather than the content. It can be very revealing, especially in the aggregate, she says.

“CPPIC`s main concern is there's this whole basket of household electronic information that's available to co-residents, knowingly or unknowingly, that's comprised of computer data, the internet of things, household electronic information and metadata about communications that are happening in the home," Presser says.

"And that is broad and potentially very revealing of core biographical information about people."

The appeal was argued on May 17 at the Supreme Court, which reserved its decision.

The case is one of two on digital privacy on which Presser is making submissions at the Supreme Court in May.

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