R v King, 2021 ABCA 271
[8] As pointed out in R. v Orlandis-Habsburgo, 2017 ONCA 649 at para. 34, 352 CCC (3d) 525:
34 I have considerable difficulty with the submission that s. 8 is engaged if the police look at information in which an accused has a legitimate privacy interest, even if that information is brought to the police by an independent third party acting on its own initiative. On that approach, s. 8 would be engaged if a “whistleblower” took confidential documents belonging to her employer to the police to demonstrate the employer’s criminal activity. Must the police refuse to look at the documents to avoid violating the employer’s s. 8 rights? As Duarte teaches, it is one thing to say that Canadian values dictate that the state’s power to decide when and how it will intrude upon personal privacy must be carefully circumscribed, and quite another to say that an individual’s private information is cloaked in the protection of s. 8 no matter how that information comes to the police.
Some may view Ms. Liu’s conduct in accessing the appellant’s electronic devices as being unethical or an invasion of privacy, but her conduct did not engage his Charter rights. She was not a state agent. She was “legally entitled to inform the police of [her] discovery of contraband”: R. v Cole, 2012 SCC 53 at para. 73, [2012] 3 SCR 34. The police can presumptively look at most evidence provided to them without breaching s. 8.
[9] The appellant relies on R. v Marakah, 2017 SCC 59, [2017] 2 SCR 608, which was concerned primarily with “standing” and particularly with when an expectation of privacy attaches to communications between two people. Here there was no communication between people, but there was also no dispute that the appellant had an expectation of privacy in the contents of his electronic devices. The key difference, however, was that in Marakah, the searches were conducted by the state; in this case, it was a private citizen (Ms. Liu) who accessed the information. The Majority stated:
50 On the first scenario, the victim, his or her parents, or other intelligence alerts the police to the existence of offensive or threatening text messages on a device. Assuming that s. 8 is engaged when police access text messages volunteered by a third party (see R. v. Orlandis-Habsburgo, 2017 ONCA 649, at paras. 21-35), a breach can be avoided if the police obtain a warrant prior to accessing the text messages. As stated in Cole, "[t]he school board was ... legally entitled to inform the police of its discovery of contraband on the laptop" and "[t]his would doubtless have permitted the police to obtain a warrant to search the computer for the contraband" (para. 73). Similarly, victims of cyber abuse are legally entitled to inform the police, which will typically permit the police to obtain a warrant. The police officers will be aware that they should not look at the text messages in question prior to obtaining a warrant. On this scenario, there is no breach of s. 8 and the text messages will be received in evidence. (Emphasis added)
This passage, if anything, supports the position of the Crown in this appeal, because it assumes that there must be some state action before a Charter breach can occur. Further, in Marakah, the unreasonableness of the search was conceded if the appellant was found to have standing.
[10] The decision in R. v Reeves, 2018 SCC 56, [2018] 3 SCR 531 is also distinguishable. In that case, the police took possession of a computer that was jointly owned by the accused and his spouse and four months later obtained a warrant to access it. It was the seizure of the computer without a warrant, and the resulting loss of control of the personal information contained on it, that was found to be unreasonable. In the present appeal, the police did not take anything that belonged to the appellant. Ms. Liu told them about information she had observed and provided her own copy of part of what she had seen.
[11] Reeves did not resolve the issue presented by this appeal. The Majority wrote:
46 The Crown also argues that rejecting its approach will prevent victims of crime who have received threatening or harassing text messages from showing them to the police. However, the issue of whether s. 8 of the Charter is engaged when a private citizen offers information or an item to the police in which another person may have a reasonable expectation of privacy does not arise in this case (see Marakah, at para. 50; Dyment, at p. 432; R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at paras. 21-35). Indeed, Gravelle did not bring the computer to the police, but rather signed a consent form authorizing them to take it. (She testified that she signed the form because she did not think she had a choice.) The issue of whether s. 8 is engaged when a citizen voluntarily brings an item to the police remains for another day. This case deals squarely with the taking of a computer by the state. (Emphasis added)
Neither Reeves nor Marakah express any doubt about Orlandis-Habsburgo.
[12] The reason that the police viewed the USB flash drive was to confirm that it contained child pornography as reported by Ms. Liu. It is acknowledged that the appellant had an expectation of privacy in the contents of his laptop: R. v Vu, 2013 SCC 60 at paras. 40-43, [2013] 3 SCR 657. The state, however, never intruded into his laptop or his privacy. Ms. Liu looked at the contents of the laptop and captured some of its contents, but she was not a state agent. The mere fact that the appellant had an expectation of privacy does not engage s. 8, and the absence of state action at that stage is dispositive. If the police had done what Ms. Liu did, there would have been a s. 8 breach, but they did no more than receive a report from a citizen who said she had found evidence of a crime. Their viewing of her USB flash drive may have been state action, but receiving reports of a crime does not engage the appellant’s s. 8 rights.
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