Context and content matters to the assessment of reasonable expectations of privacy in criminal law matters.

Recently, in R. v. B. (C.), 2013 CarswellOnt 3851 (SCJ), P. Smith J. considered the constitutionality of a warrantless search and seizure of a camera that was alleged to have been used to surreptitiously film a child in the accused’s residence as well as the seizure (but not search) of the accused’s computer.

According to the allegations, the complainant (a minor) found a video camera in her bedroom containing naked pictures of herself. The police were called to a relative’s house and were showed the pictures on the video camera. While the police were at the relative’s house, the accused showed up and identified the camera. The police took the camera.

Following taking the accused into custody, the police were given access to the accused’s home by other family members and a computer accessed by family members was seized but not searched.

The police then obtained two warrants to search the camera and the computer.

When the accused challenged the search and seizure of the camera, the court ruled that a video camera is different from a mobile phone. The court concluded that a video camera does not have the capability of storing private voice, text, e-mail communications, detailed personal contact lists, agendas and diaries, that are typically stored on a mobile phone. Accordingly, the accused did not have a heightened expectation of privacy.

But, more importantly, when the contents of the camera were first viewed by the police, the ownership of the camera was not yet known. Moreover, any privacy interest that the accused had was, in the court’s view, “relinquished” when the accused “decided to hide it in the bedroom” of the complainant.

Turning to the computer, the court noted that the fact that the entrance to the house was provided by the co-owner and the computer was commonly used by the family, including the accused, made the seizure of the computer “incident to arrest” reasonable in order to preserve potential evidence. The court noted that the computer was only searched after a warrant was obtained.

Some of the reports of this case stress the judge’s conclusion that a video camera is not like a cell phone. That certainly is part of the decision. Content matters. However, context matters as well. The video camera here was presented by the accused. The police were provided with the camera by the complainant and looked at it not knowing who the owner was in order to make a determination of whether to proceed. This is far different from searching and seizing a camera that was under the custody or control of the accused.…