Although a co-resident cannot waive the constitutional rights of another, living with someone else can impact the expectations of privacy and may allow for valid consent to enter by one of the occupants.
By Mike Novakowski
In R. v. Reeves, 2017 ONCA 365, the accused, Thomas Reeves, lived in a home for 10 years with his two teenage daughters, which he shared and co-owned with his common-law spouse. He also contributed to the mortgage payments. He was charged with domestic assault and had a no contact order with his spouse, which required him to stay away from the home unless he had his spouse’s written and revocable consent. He was subsequently arrested and held in custody.
The next day, his spouse called his parole officer to revoke consent for him to visit the home and, at the same time, told the parole officer that Reeves had child pornography on the family computer. A police officer went to the home and obtained signed consent from Reeve’s spouse for the warrantless seizure of the computer. Reeves and his spouse were “joint owners” of the computer and protected it with a password that was available to each of them. The police subsequently obtained a warrant to search the computer and found 140 images and 22 videos of child pornography. Reeves was charged with possessing and accessing child pornography.
Reeves successfully had the child pornography excluded as evidence under s. 24(2) of the Charter on a pre-trial motion in the Ontario Court of Justice. Among other things, the judge found the police violated Reeves’ s. 8 Charter right by seizing the computer from his home. Although the judge found the spouse freely consented to the search of the home and seizure of the computer, the judge held she could not, as a third party, consent to the search or otherwise waive the constitutional protection on behalf of Reeves. In the judge’s view, the officer knew or should have known that he did not have Reeves’ consent to enter the residence and remove the computer. The evidence obtained from the computer, including the results of the forensic examinations, its file and hard drive were excluded. Reeves was acquitted.
The Crown appealed the trial judge’s ruling to Ontario’s highest court, arguing, among other things, that he erred in finding that Reeves’ spouse could not consent to the seizure of the computer.
The Crown submitted that where two or more people have an equal and overlapping privacy interest in a residence, any of the co-habitants could validly consent and the police do not need to obtain the consent from each co-habitant. Reeves, on the other hand, suggested that one resident could not consent to a search or seizure on behalf of all residents.
Justice LaForme, speaking for the Court of Appeal, first outlined a number of considerations in addressing the issue of spousal or co-habitant consent searches:
• A valid consent is a waiver that immunizes a search or seizure from challenge under s. 8.
• Consent must be fully informed and voluntary.
• Consent must come from the right person. “The person who consents must be the person whose rights are engaged,” said LaForme. “Someone else cannot waive your s. 8 rights for you.”
• The weight of the trial court jurisprudence suggests a contextual test — a co-resident can usually consent to a search of the common areas, but not the private areas of another resident, such as his or her bedroom or dresser.
The Court of Appeal found the question was not whether one resident could waive the constitutional rights of another. Instead, the question was what, if any, impact the fact of joint residency has on one’s expectations of privacy, assessed in the totality of circumstances. LaForme stated:
At a high level of generality, the fact of co-residency is clearly relevant to reasonable expectation of privacy. Descriptively, a co-resident knows from the outset that the other co-resident has the right to invite others into shared spaces. Further, normatively, it would not be reasonable for one resident to expect that the other co-resident could never invite an agent of the state into the residence. In fact, one could reasonably expect that the other might have a legitimate interest in consenting to entry by law enforcement into common spaces from time to time. Of course, by the same token, one would not reasonably expect police entry without the consent of another co-resident. And certainly the facts and circumstances of the case — including the nature of living arrangements — will shape the reasonable expectations of co-residents.
In other words, in the co-residency context, consent by a co-resident other than the accused is not relevant as a form of waiver. Rather, it is relevant as part of determining whether the police have intruded upon a reasonable expectation of privacy held by the accused.
Therefore, in my view, the inquiry is two-staged: (a) would the accused reasonably expect that his or her co-resident would have the power to consent to police entry into a common space, and (b) if so, did the co-resident actually consent? Of course, the specific facts and circumstances will drive the answer to both of those questions. [paras. 48-50]
In this case, the warrantless search of the jointly-owned home and the seizure of a jointly-owned computer was lawful. Reeves’ expectation of privacy in the shared spaces of the family home and in the family computer was greatly diminished. He could not access the home except with his spouse’s permission and she had revoked her consent in a phone call to his parole officer. Furthermore, he had been arrested the day before and was still in custody. As for Reeve’s expectation of privacy in the computer, seizing it did not interfere with his heightened expectation of privacy in its informational content.
“In light of the history and legal status between them, it would have been within [the accused’s] reasonable expectations that [his spouse] might have a legitimate interest in consenting to police access to the shared space and property,” said LaForme. “It was not reasonable for [the accused] to expect [his spouse] would not be able to consent to police entry into the common areas of the home or to the taking of the shared computer.”
LaForme held that the trial judge erred in finding Reeves’ spouse could not consent to the search of the shared areas of home and the seizure of the computer by police. Her consent was valid. It was both voluntary and informed. The officer told the spouse that he was responding to the call she had made when she reported seeing child pornography on the family computer. The officer then satisfied himself an offence had been committed and the spouse signed a consent form granting permission to enter the residence and search it and its contents, which were owned and/or controlled by the spouse, and seize anything or arrest any person that is believed to be relevant to the investigation. The officer did not search any area of the home nor did he seize any additional property. Once he obtained the computer, he locked it up and did not search it until a warrant was obtained.
The Crown’s appeal was allowed, the exclusionary order set aside and a new trial was ordered.
Mike Novakowski is Blue Line’s case law columnist. He can be contacted at firstname.lastname@example.org