Supreme Court of Canada Protects Digital Privacy in Shared Devices

Today, the Supreme Court of Canada issued R v Reeves, 2018 SCC 56 [1], a decision that further entrenches Canadians' privacy expectations in computing devices while adding important nuance to the Court's jurisprudence regarding information privacy protections in shared. The decision under appeal questioned [2] whether police can seize a shared computing device on the third party consent of a co-user. As CIPPIC noted in its intervention [3], ably prepared by our co-counsel, Jill Presser [4] and Kate Robertson [5], shared access to computing devices is routine feature of modern life. Often this shared access occurs without explicit individual awareness -- a trend only likely to increase with the plethora of emerging smart home devices. Allowing one roommate, partner or other co-habitant to unilateral waive privacy protection could allow the state to intervene into highly private spaces with minimal safeguards in place. Low-income individuals [para 44 [1]] and individuals subjected to technology-facilitated abuse [para 23 [3]] by their intimate partners could disproportionately face the brunt of these negative impacts.

In rejecting such a paradigm, Madam Justice Karakatsanis (writing for the majority) correctly held that privacy rights must survive the pragmatic risk associated with such routine living arrangements:

I cannot accept that, by choosing to share our computers with friends and family, we are required to give up our Charter protection from state interference in our private lives. We are not required to accept that our friends and family can unilaterally authorize police to take things that we share. The decision to share with others does not come at such a high price in a free and democratic society. [para 44 [1]]

Reeves contributes to a growing body of jurisprudence elaborating privacy protections in shared or semi-public situations, which includes last year's decisions [6] in Marakah and Jones, as well as upcoming decisions in R v Mills, SCC File No 37518 [7], R v Jarvis, SCC File No 37833 [8], and R v Le, SCC File No 37971 [9].

Image Credit: Marco Verch, "Aufkleber mit Passwort auf dem Laptop", July 24, 2018, Flickr [10], CC-BY 2.0