Is a person’s home still his castle? Or is it subject to intrusion by the state or the police when they are pursuing criminal activity?
In mid-March this year, the Supreme Court of Canada provided guidance on this question. In a well-written and interesting decision, the court ruled that a home is still a person’s castle.
It involved a disturbing crime in Saskatchewan, possession and distribution of child pornography. That crime made decisions tougher, since most people believe the authorities should do whatever they can to stamp out such heinous activity.
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A computer tech came to the accused’s house to install a new internet connection. The accused lived with his wife and two children, aged three and seven. When the technician opened the web browser, he noticed links to child pornography sites in the favourites list.
In the room, he noticed home videos and, on a tripod, a webcam that was connected to a videotape recorder that was pointed at toys and the child. The technician returned the next morning and noted that everything had been cleaned up.
Concerned with the children’s safety, he reported what he had seen to a social worker, who contacted the RCMP. The RCMP got a search warrant, seized the computer and found the child porn.
The accused was found guilty and his first appeal failed.
However, his appeal to the Supreme Court was successful and his conviction was overturned. It was a narrow decision, four to three, which indicates the court’s members were far from unanimous on the issues. Justice Morris J. Fish wrote the following:
“It is difficult to imagine a search more intrusive, extensive or invasive of one’s privacy than the search and seizure of a personal computer. First, police officers enter your home, take possession of your computer and carry it off for examination in a place unknown and inaccessible to you.
“There, without supervision or constraint, they scour the entire contents of your hard drive: your e-mails sent and received, accompanying attachments, your personal notes and correspondence, your meetings and appointments, your medical and financial records and all other saved documents that you have downloaded, copied, scanned or created. The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the internet – generally by design, but sometimes by accident.”
The majority of the court found that the information obtained to get the search warrant was not strong enough for the warrant to have been issued. They did not have “reasonable and probable grounds” for their search. All the evidence obtained had to be thrown out.
Justice Fish was careful to voice disapproval of such criminal activity.
“To be sure, offences involving child pornography are particularly insidious. They breed a demand for images that exploit vulnerable children, both economically and morally.
“Understandably, offences of this sort evoke a strong emotional response. They generate widespread condemnation and intense feelings of disapprobation, if not revulsion.
It is for this very reason that the police, in enforcing the law, must avoid any temptation to resort to stereotypical, inflammatory, or misleading allegations.”
While the court recognized the need to pursue these crimes with vigour, it also recognized that having one’s home entered and computer seized and viewed were a tremendous intrusion into a person’s privacy.
The court was not saying the police could never do this, but that the police have to follow all the rules and be careful to meet legal requirements before entering someone’s home and viewing a computer.
It’s easy to see why many might view this case as a step backward. Yet, as the majority of the Supreme Court said, it’s when the stakes are high that the police must meet the most stringent standards.
The Supreme Court emphasized that every person living in a free and democratic society has the right to be protected against unreasonable search and seizure, no matter what sort of criminal offence is alleged.
One’s home is still one’s castle, for the most part, and those castle walls can only be breached where the police have proper grounds to do so.
Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon.
