Case information

Charter of Rights – Criminal law – Search and seizure – Consent – Where a person shares a home and its contents with others, can the state rely upon the consent of a third-party co-resident to justify a warrantless search and seizure under s. 8 of the Charter as against the person whose consent has not been obtained – Whether a person’s reasonable expectation of privacy under s. 8 of the Charter includes a “risk analysis” of whether the person should reasonably expect that a third party with whom he or she shares a home may become adverse to his or her interests and consent to police entry to seize property from the home, and that it would be open to agents of the state to do so without prior judicial authorization, or any other legal authority – Canadian Charter of Rights and Freedoms, s. 8.

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(PUBLICATION BAN IN CASE)

Mr. Reeves had shared a home with N, his common-law spouse of 20 years and their two daughters. At some point in time there was an altercation involving Mr. Reeves, N and N’s sister and Mr. Reeves was charged with domestic assault. Mr. Reeves was subject to a “no contact” order which allowed Mr. Reeves to visit the home only if N provided her prior, written and revocable consent. N had consented to visits by Mr. Reeves for some time, but later, N contacted Mr. Reeves’ probation officer in order to withdraw her consent. N also reported that she and her sister had accessed the family’s computer and found multiple videos that she believed to contain child pornography. N allowed the police to enter the residence and signed a consent form authorizing the seizure of the computer. The police retained the computer without a warrant for more than four months but they did not search the computer during the intervening time. The police later sought and obtained a warrant to re-seize the computer and search it. The police discovered 140 images of child pornography and 22 videos of child pornography.

Mr. Reeves was charged with possessing child pornography and accessing child pornography. He, however succeeded on a pre-trial s. 8 Charter application. His application to exclude the evidence obtained as a result of the search and seizure of his home computer as well as any evidence derived from a forensic examination of the computer was granted. Mr. Reeves was acquitted. On appeal, the exclusionary order was set aside and a new trial ordered.