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| Patrick Ducharme |
New technology presents new challenges for identifying and protecting one’s reasonable expectation of privacy. Fish J. writing the majority decision for the Supreme Court of Canada in Morelli1 wrote:
… It is difficult to imagine a more intrusive invasion of privacy than the search of one’s home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet.
This decision of the Supreme Court of Canada effectively placed computers on the same level as private homes. The case goes on to state that, the repute of the administration of justice would be significantly eroded if such unacceptable police conduct were permitted to form the basis of such intrusive and invasive police actions against one’s privacy as the search of our homes and the seizure and scrutiny of our personal computers.
Although the Supreme Court of Canada may have placed searches related to private home computers on the same level as a search of a private home, it is apparent that other technological devices also contain copious amounts of core biographical information concerning its user. The expectations of privacy in these devices will have to be decided on a case-by-case basis. One wonders what use the courts will make of social networks such as Facebook and Twitter. Will the use of one’s computer, even if privately owned, impact on one’s reasonable expectation of privacy? The jurisprudence in this area is just beginning to address these concerns.
In R. v. Manley3 the Court of Appeal for Ontario decided that police had unlawfully seized and conducted a brief, personal, warrantless search of the saved data in Mr. Manley’s cell phone incident to his arrest for break and entering in order to determine if he was the lawful owner of the phone and for no other purpose. The court upheld the search incident to arrest because the police believed that the accused had stolen cell phones. In coming to this conclusion, however, the court observed that that an open-ended power to search the stored data in any cell phone in the possession of any arrested person would clearly raise, “the spectre of a serious and significant invasion of the Charter-protected privacy interests of arrested persons”.
This case is in harmony with the Supreme Court of Canada’s landmark decision in R. v. Plant4 where the court endeavoured to foster, “the underlying values of dignity, integrity and autonomy” in section 8 Charter investigations. Significantly, the court sought to provide constitutional protection to, “a biographical core of personal information” that persons living in a free and democratic society wish, “to maintain and control from dissemination to the state.” The court spoke of protecting that information that “tends to reveal intimate details of the lifestyle and personal choices of the individual.”
The court also considered the question of whether a homeowner possessed a reasonable expectation of privacy in the computer records of their electrical utility revealing how much electricity was used in their home. In coming to the conclusion that the accused did not have a reasonable expectation of privacy in this information the court considered a number of factors, namely: the nature of the information; the nature of the relationship between the party releasing information; the party claiming confidentiality; the place where the information was obtained; the manner in which the information was obtained; and, the seriousness of the crime being investigated. The court obviously applied a contextual approach.
Interestingly, the Supreme Court of the United States in Ontario v. Quon was required to answer the question of whether a government employee, provided with a mobile digital device for work, held a constitutionally protected privacy interest when using that device for personal benefit. The court decided that the warrantless search of the device was reasonable because it was undertaken on reasonable grounds and for non-investigatory work-related purposes, notwithstanding that the search revealed intimate details of his life. They found there had been no violation of the 4th Amendment.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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