OCA rules on search and seizure

May 16, 2017
Article Source
Law Times

Criminal defence lawyers say a recent Ontario Court of Appeal decision has important implications for the law of search and seizure and when a spouse can waive the privacy rights of an accused person in a jointly owned residence. 

In R. v. Reeves, the common law spouse of the accused, Thomas Reeves, allowed the police to seize their computer from the home they co-owned without a warrant.

The police later obtained a warrant to search the computer and found child pornography on it. At the time the computer was seized, Reeves was in custody on a domestic assault charge and was barred from entering the house under a court order unless he had his spouse's permission, which had been withdrawn.

Reeves was acquitted before trial on an application based on unreasonable search or seizure under s. 8 of the Charter, but the Court of Appeal allowed an appeal from the Crown, reversing that acquittal.

". . . I would, unlike the application judge, admit the evidence. Consequently, a new trial for Reeves must be ordered," Justice Harry LaForme wrote in the decision on behalf of a three-judge panel.

Brad Greenshields, the lawyer representing Reeves, says the decision is unique, as it holds the law of search and seizure can potentially not protect a house if an accused person has been temporarily barred from that dwelling for other charges.

"The case is troubling from the perspective of the common situation where a domestic party has been forced out of their dwelling home by virtue of court-imposed conditions and that the court said that the adverse spouse can provide police permission to seize suspected evidence of further alleged offences absent reasonable and probable grounds and absent an opportunity for the accused to assert a privacy interest before the state invasion occurs," says Greenshields, a lawyer with Greenspan Partners LLP.

The police had come to the house to obtain the computer after Reeves" spouse contacted his parole officer and alerted him to the fact there was child pornography on the computer.

She allowed the police to enter without a warrant and signed a consent form authorizing the seizure of the computer.

The police discovered 140 images and 22 videos of child pornography when they searched the computer months later after obtaining the warrant, and Reeves was subsequently charged with possessing and accessing child pornography.

Read more: OCA rules on search and seizure