Supreme Court of Canada Decides That Third Parties Cannot Waive a Person’s Charter Rights in Child Pornography Case


By Written on behalf of Campbell Bader LLP

The Supreme Court of Canada recently confirmed that a third party cannot waive a person’s right to privacy or other Charter rights in a case surrounding the search and seizure of a computer containing child pornography.

The Facts

The accused shared a home with his common-law spouse, in which they lived with their two daughters. In 2011, the accused was charged with domestic assault against his spouse and her sister and a no-contact order was issued. The accused was prohibited from visiting the family home without his spouse’s prior, written and revocable consent. In 2012, the spouse contacted the accused’s probation officer to withdraw her consent. At the same time, she reported that she and her sister had found what they believed to be child pornography on the home computer.

Later that day, a police officer arrived at the home without a warrant. The spouse allowed the officer inside and she signed a consent form authorizing the officer to take the home computer, which was located in the basement, a shared space in the home. The officer testified that he sought the spouse’s consent because he did not believe he had reasonable grounds to obtain a warrant to search the home and seize the computer. The computer was owned and used by both the accused and the spouse. At the time of the seizure, the accused was in custody on unrelated charges.

Even though the police had the computer in their custody, they did not search it for over four months. They failed to report the seizure of the computer as required by the Criminal Code. In 2013, the police finally obtained a warrant to search the computer and found hundreds of images and videos of child pornography. The accused was charged with possessing and accessing child pornography.

At trial, the judge concluded that the police had violated the accused’s rights under s. 8 of the Canadian Charter of Rights and Freedoms (the “Charter”) and the accused was acquitted. Section 8 states that: “Everyone has the right to be secure against unreasonable search or seizure.”

The Ontario Court of Appeal allowed the Crown’s appeal from the acquittal, set aside the exclusionary order and ordered a new trial.


On appeal to the Supreme Court of Canada, the key issue was whether the police officer could rely on the consent of accused’s spouse to take the shared computer from their home.

The Decision

At the outset, the court stated that the purpose of s. 8 of the Charter is “to protect individuals from unjustified state intrusions upon their privacy” and is only engaged if the claimant has a reasonable expectation of privacy in the place or item that is inspected or taken by the state. It also stated a core aspect of s. 8 is that the seizure took something from the claimant without their consent. If s. 8 is engaged, the court must look at whether the search or seizure was reasonable.

In this case, the court had to look at three issues:

  1. the police entry into the home;
  2. the taking of the shared computer; and
  3. the spouse’s consent to the police seizure of the shared computer.

After analysing the evidence and legal principles, the court found that the accused had a reasonable expectation of privacy in the shared computer and his rights had not been waived. The taking of the computer by the police constituted a seizure within the meaning of s. 8 of the Charter. Thus, the court concluded that the warrantless seizure was not reasonable because it was not authorized by any law. The seizure therefore violated the accused’s rights under s. 8 of the Charter.

The court came to this conclusion by finding that the accused had a direct interest and subjective expectation of privacy in the home computer and the data it contained. It stated that personal computers contain highly private information. The court confirmed that “[g]iven the unique privacy concerns associated with computers, this Court has held that specific, prior judicial authorization is required to search a computer” and that “[t]he joint ownership of the computer does not render [the accused]’s subjective expectation of privacy objectively unreasonable.” Finally, it found that his spouse’s consent could not nullify his reasonable expectation of privacy in the computer data and that his spouse could not waive his Charterrights, even though they shared the computer.

As a result, the court allowed the appeal, set aside the judgment of the Court of Appeal, excluded the evidence obtained from the seizure and subsequent search of the accused’s computer, and restored the acquittal entered at trial.

Get Advice

Being criminally convicted can have a significant impact on your life, leading to a permanent record, significant fines, and/or jail time. This can seriously impact your reputation, your employment opportunities, and even your ability to travel outside of Canada. If you have been charged with a criminal offence, it is imperative to consult with a knowledgeable criminal defence lawyer as soon as possible to learn about your options and to protect yourself.

At Campbell Bader LLP, we can help. Our team of exceptional Mississauga criminal defence lawyers has been representing clients charged with criminal offences since 1999. We are highly skilled litigators and have conducted trials in the Superior Court and Ontario Court of Justice. We have the knowledge, experience, and skill-set to effectively defend clients charged with even the most serious of offences. We will listen, consider, and provide you with practical options. Contact us online or at 905-828-2247.


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