Deletion of Computer Files Not Abandonment of Privacy Interest

Readers may recall my post on the subject of R. v. Cole here, a Supreme Court of Canada decision about expectations of privacy in workplace laptops. That decision has been now followed in a recent BC decision and while the facts are not terribly different, it is interesting to see the further application of privacy law and follow its evolution. Especially in light of an assertion made at the trial level.

R. v. McNeise is an appeal from a trial decision where the accused was found guilty of one count of accessing child pornography. The police had initially received information that child pornography was being accessed and downloaded from an IP address associated with a house in Fort Nelson, BC where the appellant was the only male resident.

Following the execution of a search warrant, the police found a “desktop” computer that contained child pornographic images in the recycle bin. The police then asked the Superintendent of the Fort Nelson School District for the appellant’s school laptop, so that they could search it as well.  That computer was owned by the school district and exclusively assigned to the appellant. School board policy did not prohibit the use of the laptop for personal purposes.

The Superintendent sought legal advice and then gave the laptop to the police.  The police acknowledged that they did not have sufficient grounds at that time to obtain a search warrant for the school district laptop. They were, however, able to recover deleted child pornography from the school laptop and considered this evidence to be important given a slim possibility that the home laptop could have been accessed by the accused’s wife.

At trial – and this is where I paused when reading the decision – the judge ruled in a voir dire (a hearing within a trial to address the admissibility of evidence] that the accused, by deleting files, had abandoned an expectation of privacy:

 [22]      There is a live issue in this case about whether the requirement of subjective expectation of privacy is met.  Deleting the cache of your own temporary Internet files on someone else’s laptop computer could be considered somewhat analogous to dumping your household garbage not at the curbside but directly into the garbage truck.  It is a more complete and thorough form of abandonment because in the absence of special software, the record is no longer available either to you or to the laptop owner.

[23]      Mr. McNeice did not testify, but from what I have heard of his knowledge of computers, I can infer that he was knowledgeable enough to know that browsing histories, as with all deleted files, are not fully erased from a memory storage medium such as a hard drive until they are overwritten.  Absent a well-equipped snooper, the information is effectively akin to garbage in the city landfill, abandoned and discarded.  In this case, it is not household garbage because there is no evidence that the browsing history originated in the accused’s home.

 On appeal, Chief Justice Finch pointedly addressed the issue of an expectation of privacy:

 [65]        As I have already noted, I consider the deletion of the files to be more consistent with an intention to conceal, and thus to maintain a privacy interest, than it is with the idea of “abandonment”, and an intention to give up a privacy interest.  Moreover, the nature of the information is not materially different from that considered in Cole.

[66]        In my view, the deleted Internet files containing the pornographic images were subject to a reasonable expectation of privacy in the appellant.  I conclude that the police search of those files, without a warrant, was a breach of the appellant’s s. 8 right to be secure against unreasonable search and seizure.

This did not mean that Mr. McNeise won on appeal. While the Court of Appeal accepted that there was a s. 8 violation, the evidence was admitted through the application of s. 24(2) of the Charter. The court’s examination of the facts surrounding the police conduct in seeking access rated the breach of the accused s. 8 rights as “mid-to-low” in terms of seriousness.

While it is interesting to see how Cole was followed, this case may be more significant for the fact that the idea of deleting files could somehow be akin to throwing out garbage — and therefore fair game for the police — has been summarily rejected.