R. v. Mills

R. v. Mills
Collection
Supreme Court Judgments
Date
2019-04-18
Neutral citation
2019 SCC 22
Report
[2019] 2 SCR 320
Case number
37518
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Brown, Russell; Martin, Sheilah
On appeal from
Newfoundland and Labrador
Subjects
Constitutional law
Notes
Case in brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320
Appeal Heard: May 25, 2018 Judgment Rendered: April 18, 2019 Docket: 37518
Between:
Sean Patrick Mills
Appellant
and
Her Majesty The Queen
Respondent
- and -
Director of Public Prosecutions, Attorney General of Ontario, Director of Criminal and Penal Prosecutions, Attorney General of British Columbia, Attorney General of Alberta, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Canadian Civil Liberties Association, Criminal Lawyers’ Association and Canadian Association of Chiefs of Police
Interveners
Coram : Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown and Martin JJ.
Reasons For Judgment: (paras. 1 to 35)
Brown J. (Abella and Gascon JJ. concurring)
Concurring Reasons: (paras. 36 to 65)
Karakatsanis J. (Wagner C.J. concurring)
Concurring Reasons: (paras. 66 to 67)
Moldaver J.
Concurring Reasons: (paras. 68 to 159)
Martin J.
R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320
Sean Patrick Mills Appellant
v.
Her Majesty The Queen Respondent
and
Director of Public Prosecutions,
Attorney General of Ontario,
Director of Criminal and Penal Prosecutions,
Attorney General of British Columbia,
Attorney General of Alberta,
Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic,
Canadian Civil Liberties Association,
Criminal Lawyers’ Association and
Canadian Association of Chiefs of Police Interveners
Indexed as: R. v. Mills
2019 SCC 22
File No.: 37518.
2018: May 25; 2019: April 18.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown and Martin JJ.
on appeal from the court of appeal for newfoundland and labrador
Constitutional law — Charter of Rights — Search and seizure — Child luring — Police sting operation — Interception with consent — Accused charged with child luring after communicating online with police officer posing as 14‑year‑old girl — Police using screen capture software to create record of online communications —Whether investigative technique amounted to search or seizure of accused’s online communications — Whether police intercepted private communication without prior judicial authorization — Canadian Charter of Rights and Freedoms, s. 8 — Criminal Code, R.S.C. 1985, c. C‑46, s. 184.2 .
A police officer posed online as a 14‑year‑old girl named Leann, with the intent of catching Internet child lurers. Using Facebook and Hotmail, M sent Leann sexually explicit messages and arranged a meeting in a park, where he was arrested and charged with child luring. Without having obtained prior judicial authorization, the officer used screen capture software to create a record of his online communications with M as evidence for trial. M applied for the exclusion of the evidence. The trial judge found that the messages were “private communications” as defined in s. 183 of the Criminal Code and that prior judicial authorization to capture the messages under s. 184.2 of the Criminal Code was therefore required from the point at which the police had determined that M had a potentially inappropriate interest in a minor. He also held that the use of the screen capture software generated a seizure of the communications, and that M had an expectation of privacy in his communications. He therefore found that the police breached s. 8 of the Charter . However, he found that admitting the evidence would not bring the administration of justice into disrepute and he convicted M. The Court of Appeal held that the trial judge had erred in concluding that authorizations under s. 184.2 were required and found that M’s expectation of privacy was not objectively reasonable. It held that M’s s. 8 rights were not infringed and therefore upheld the conviction.
Held: The appeal should be dismissed.
Per Abella, Gascon and Brown JJ.: Section 8 of the Charter was not engaged when the officer captured M’s electronic communications. To claim s. 8 ’s protection, an accused must show a subjectively held and objectively reasonable expectation of privacy in the subject matter of the putative search. M could not claim an expectation of privacy that was objectively reasonable because M was communicating with someone he believed to be a child, who was a stranger to him, and the investigatory technique meant that the undercover officer knew this when he created her. On the facts of this case, giving judicial sanction to the particular form of unauthorized surveillance in question would not see the amount of privacy and freedom remaining to citizens diminished to a compass inconsistent with the aims of a free and open society, if expectations of privacy are to express a normative, rather than descriptive, standard. Therefore, the sting did not require prior judicial authorization.
Objective reasonableness is assessed in the totality of the circumstances, along four lines of inquiry. The first three inquiries are an examination of the subject matter of the alleged search, a determination as to whether the claimant had a direct interest in the subject matter and an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter. These lines of inquiry support M’s claim to an expectation of privacy. The subject matter is the electronic communications, and they have no legally significant distinction from text messages. M intended to have a one‑on‑one online conversation. As a participant and a co‑author of the communications, M had a direct interest in the subject matter and he expected the communications to be private.
The fourth inquiry is whether M’s subjective expectation of privacy was objectively reasonable having regard to the totality of the circumstances. Determining objective reasonableness is a normative question about when Canadians ought to expect privacy given the applicable considerations. On a normative standard, adults cannot reasonably expect privacy online with children they do not know. This appeal involves a particular set of circumstances, where the nature of the relationship and the nature of the investigative technique are decisive. Although s. 8 is not traditionally approached from the perspective of the particular relationship because its protection is content-neutral, the police knew the relationship in advance of any potential privacy breach. While society values many adult‑child relationships as worthy of s. 8’s protection, this relationship is not one of them. With respect to the investigative technique, the police knew from the outset that the relationship was fictitious and that Leann was truly a stranger to M. They could confidently and accurately conclude that no s. 8 concern would arise from reviewing these communications. Section 8 jurisprudence is predicated on police obtaining prior authorization before a potential privacy breach. No such potential existed in this case. Section 184.2 of the Criminal Code does not apply in the instant case because a communication made under circumstances in which there is no reasonable expectation of privacy cannot constitute a “private communication” for the purposes of s. 183 .
Per Wagner C.J. and Karakatsanis J.: There is agreement that the appeal should be dismissed, but for different reasons. When undercover police officers communicate in writing with individuals, there is no search or seizure within the meaning of s. 8 of the Charter . This is because an individual cannot reasonably expect their words to be kept private from the person with whom they are communicating. Here, the police did not interfere with a private conversation between other individuals; they directly participated in it. The police also did not violate s. 8 of the Charter when they communicated with M and retained screenshots of those conversations. Because the conversation occurred via email and Facebook, it necessarily took place in a written form. The screenshots from the screen capture software are simply a copy of the pre‑existing written record and not a separate surreptitious permanent record created by the state.
Not every investigatory technique constitutes a search or seizure — s. 8 may be engaged only where the investigatory conduct intrudes upon a person’s reasonable expectation of privacy. Section 8 does not prevent police from communicating with individuals in the course of an undercover investigation, because the investigatory technique of engaging in conversation, even where the officer is undercover, does not diminish an individual’s reasonable expectation of privacy. Here, an undercover police officer conversed with M using Facebook and email. This is no different from someone speaking to an undercover officer in person. M clearly intended for the recipient (who happened to be a police officer) to receive his messages. Because he had no reasonable expectation that his messages would be kept private from the intended recipient, s. 8 is not engaged.
The police’s use of the screen capture software is also not a search or seizure. There is no relevant difference in the state preserving the conversations by taking a screenshot of them rather than using a computer to print them or tendering a phone or laptop with the conversations open and visible. This use of technology is not intrusive or surreptitious state conduct. Furthermore, the permanent record of the conversation resulted from the medium through which M chose to communicate. He could not reasonably expect that the intended recipient of his communications would not have a written record of his words. Because the police techniques used in the instant case did not engage the protections of s. 8 , judicial pre‑authorization was not required.
While the Internet empowers individuals to exchange much socially valuable information, it also creates more opportunities to commit crimes. Undercover police operations, using the anonymity of the Internet, allow police officers to proactively prevent sexual predators from preying on children.
Per Moldaver J.: The reasons provided by Karakatsanis J. and Brown J. are sound in law and each forms a proper basis for dismissing the appeal.
Per Martin J.: The state surveillance of M’s private communications constituted a search that breached s. 8 of the Charter . It was objectively reasonable for M to expect that a permanent recording of the communications between himself and the police officer would not be surreptitiously acquired by an agent of the state absent prior judicial authorization. The police officer’s use of the screen capture software constituted an “interception” within the meaning of Part VI of the Criminal Code . Because he did not obtain prior judicial authorization, the search was unreasonable. However, the application to exclude the evidence pursuant to s. 24(2) of the Charter was properly dismissed. While the impact of the breach was significant, the seriousness of the breach was minimal. Exclusion of relevant and reliable evidence in a child‑luring case, obtained using tactics that the police had good reason to believe were legal at the time of the investigation, would bring the administration of justice into disrepute.
The regulation of an ever‑changing internet requires careful balancing of rights and interests. The sexual exploitation of a minor is an abhorrent act and children and youth are particularly vulnerable on the internet. State actors must be equipped with investigative powers that will allow them to root out sexual exploitation online. Such investigative powers, however, need to be counter‑balanced with the state’s obligation to respect the privacy rights of its citizens. Reasonable expectation of privacy is assessed on a normative, rather than descriptive, standard. The question to be asked is whether the privacy claim must be recognized as beyond state intrusion absent constitutional justification if Canadian society is to remain a free, democratic and open society. In a free and democratic society, it is reasonable to expect that the state will only access electronic recordings of private communications if it has sought authorization to do so.
R. v. Duarte, [1990] 1 S.C.R. 30, held that surreptitious participant electronic surveillance by the state requires regulation. Warrantless surveillance at the sole discretion of the police annihilates the right of individuals to choose the range of their auditors and imposes a risk of having to contend with a documented record of their words. This effectively strips freedom of thought and expression of any meaning. In response to Duarte, Parliament enacted s. 184.2 of the Criminal Code which requires prior judicial authorization for electronic state participant surveillance. In Duarte, documentation of private communications occurred via state recording technology. Now, individuals communicate using electronic media, such that their conversations are inherently recorded, and the way to obtain a real‑time record of a conversation is simply to engage in that conversation. This shift in communication methods should not mean that the state should no longer be required to seek authorization to access electronic recordings of private communications. Otherwise, there would be no meaningful residuum to the right to live free from surveillance.
The electronic communications in the case at bar are a hybrid of an oral conversation and the surreptitious electronic recording of that conversation that attracted a reasonable expectation of privacy in Duarte. This duality should support, not undermine the protection of privacy rights, because a recording exists and the state has unrestricted and unregulated access to it. Contemporary electronic communications are analogous to electronic recordings because they possess the characteristics of permanence, evidentiary reliability, and transmissibility that define electronic recordings and they are a documented record of the conversation. That conversants are aware that their communications are being recorded and knowingly create the record does not mean that electronic communications must be analogized to oral conversations nor does it destroy any reasonable expectation of privacy. Creating written, electronic records of one’s private communications is a virtual prerequisite to participation in modern society, yet individuals still retain subjective and objective expectations of privacy in those communications. Unregulated state electronic surveillance will lead to self‑censoring online and will annihilate society’s sense of privacy.
A general proposition that it is not reasonable for individuals to expect that their messages will be kept private from the intended recipient cannot apply when the state has secretly set itself up as the intended recipient. In the case of state participant surveillance, the notion of intended recipient is infused with the concept of the right to choose one’s listeners. An individual retains the reasonable expectation that the state will only permanently record a private communication with judicial authorization. Further, there are quantitative and qualitative distinctions between in‑person and electronic state surveillance that make the analogy between the “conversations” in Duarte and today’s electronic communications untenable. Quantitatively, in‑person conversations with undercover police officers are not capable of subjecting the public to surreptitious electronic surveillance on a mass scale due to the practical resource constraints of undercover police work whereas electronic surveillance technologies make possible mass surveillance as never before. Qualitatively, the ability to fabricate alternative identities has never been more possible and online anonymity allows for a different order of state surveillance using believable, false identities. Finally, state action that intrudes on a reasonable expectation of privacy is intended to be addressed via s. 8 of the Charter . Placing communications outside s. 8 because the state recipient can obtain a record simply by engaging in the conversation undermines the purpose of privacy rights and upsets the careful balance between the ability of the state to investigate crime and the rights of individuals to private areas of expression.
Determining whether there is a reasonable expectation of privacy based on a category of relationship is risk analysis reasoning, not content neutral, and puts courts in the business of evaluating personal relationships with a view to deciding which deserve Charter protection under s. 8 , and which do not. Judicial disapprobation of an accused’s lifestyle has no place in the s. 8 privacy analysis. Finally, a finding of reasonable expectation of privacy does not mean that the state is forbidden from conducting a search — it means that the police action must be supported by a power that respects s. 8 of the Charter . The scenario presented of a sting context in which the state pretends to be a child and communicates with those seeking to sexualize children is the type of circumstance in which the state could and should obtain judicial authorization to surveil private, electronic communications. The risk that one’s co‑conversant may disclose a private communication does not affect the reasonableness of the expectation that the state, in the absence of such disclosure, will not intrude upon that private communication. Under s. 8, the analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought. It is not reasonable to assume that communications between adults and children who do not know each other will be criminal in nature. Content neutrality was developed to ensure that unjustified state intrusions into privacy would not occur. The s. 8 inquiry has never assumed that some relationships are a priori criminal and therefore do not legitimately attract an expectation of privacy. It is not the role of the courts to evaluate personal relationships with a view to denying s. 8 Charter protection to certain classes of people.
The use of screen capture software fits within the definitions of “intercept” and “private communication” under s. 183 of the Criminal Code . The word “intercept” denotes an interference between the sender and recipient in the course of the communication process. The police officer recorded the informational content of the private communications when he saved them for the sake of reproduction for the courts in real‑time. Applying Part VI in this case strikes the right balance between law enforcement’s need to investigate crime and the right to be left alone. Even in the absence of screen capture software, it may be that the state investigative technique employed here constituted an “interception”. In communicating with M over a medium that inherently produces an electronic recording, the police officer “acquired” a record of the communication. If electronic police surveillance of private communications is only regulated by Part VI to the extent that extraneous recording software is employed, it is no longer sufficiently comprehensive. To be constitutionally compliant, state acquisition in real‑time of private electronic communications requires regulation.
Cases Cited
By Brown J.
Distinguished: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Duarte, [1990] 1 S.C.R. 30; referred to: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Edwards, [1996] 1 S.C.R. 128; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696; R. v. Graff, 2015 ABQB 415, 337 C.R.R. (2d) 77; R. v. Ghotra, [2015] O.J. No. 7253; R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021; R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; R. v. Budreo (2000), 46 O.R. (3d) 481; R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3.
By Karakatsanis J.
Considered: R. v. Duarte, [1990] 1 S.C.R. 30; referred to: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3; R. v. Evans, [1996] 1 S.C.R. 8; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Orlandis‑Habsburgo, 2017 ONCA 649, 40 C.R. (7th) 379; R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535; R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3; Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Mack, [1988] 2 S.C.R. 903; R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544; R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696; R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173; R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551; R. v. Chiang, 2012 BCCA 85, 286 C.C.C. (3d) 564; R. v. Bayat, 2011 ONCA 778, 108 O.R. (3d) 420; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309.
By Martin J.
Considered: R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; referred to: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Reeves, 2018 SCC 56; R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321; R. v. Wong, [1990] 3 S.C.R. 36; United States v. White, 401 U.S. 745 (1971); R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343; R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696; R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535; Holmes v. Burr, 486 F.2d 55 (1973); R. v. Wise, [1992] 1 S.C.R. 527; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657; Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211; R. v. Craig, 2016 BCCA 154, 335 C.C.C. (3d) 28; R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Belnavis, [1997] 3 S.C.R. 341; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Kwok, [2008] O.J. No. 2414; R. v. Blais, 2017 QCCA 1774, R. v. Beairsto, 2018 ABCA 118, 359 C.C.C. (3d) 376; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3; R. v. Plant, [1993] 3 S.C.R. 281.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
Criminal Code, R.S.C. 1985, c. C‑46 , Part VI, ss. 172.1, 183 “intercept”, “private communication”, 184.2.
Authors Cited
Fitch, Gregory J. “Child Luring”, in Substantive Criminal Law, Advocacy and the Administration of Justice, vol. 1, presented to the National Criminal Law Program. Edmonton: Federation of Law Societies of Canada, 2007.
Haggerty, Kevin D. “Methodology as a Knife Fight: The Process, Politics and Paradox of Evaluating Surveillance” (2009), 17 Critical Crim. 277.
Hutchison, Scott C., et al. Search and Seizure Law in Canada. Toronto: Carswell, 1991 (loose‑leaf updated 2018, release 7).
Lyon, David. Surveillance After Snowden. Cambridge: Polity Press, 2015.
MacFarlane, Bruce A., Robert J. Frater and Croft Michaelson. Drug Offences in Canada, vol. 2, 4th ed. Toronto: Thomson Reuters, 2015 (loose‑leaf updated April 2017, release 2).
Marthews Alex, and Catherine Tucker, “The Impact of Online Surveillance on Behavior” in David Gray and Stephen E. Henderson, eds., The Cambridge Handbook of Surveillance Law. Cambridge: Cambridge University Press, 2017, 437.
Penney, Jonathon W. “Internet surveillance, regulation, and chilling effects online: a comparative case study” (2017), 6:2 Internet Policy Review (online: https://policyreview.info/node/692/pdf; archived version: http://www.scc‑csc.ca/cso‑dce/2019SCC‑CSC22_1_eng.pdf).
Penney, Steven. “Consent Searches for Electronic Text Communications: Escaping the Zero‑Sum Trap” (2018), 56 Alta. L. Rev. 1.
Penney, Steven, Vincenzo Rondinelli and James Stribopoulos. Criminal Procedure in Canada, 2nd ed. Toronto: LexisNexis, 2018.
Pomerance, Renee M. “Flirting with Frankenstein: The Battle Between Privacy and Our Technological Monsters” (2016), 20 Can. Crim. L. Rev. 149.
Stewart, Hamish. “Normative Foundations for Reasonable Expectations of Privacy” (2011), 54 S.C.L.R. (2d) 335.
Westin, Alan. Privacy and Freedom. New York: Ig Publishing, 1967.
APPEAL from a judgment of the Newfoundland and Labrador Court of Appeal (Welsh, Harrington and Hoegg JJ.A.), 2017 NLCA 12, [2017] N.J. No. 55 (QL), 2017 CarswellNfld 58 (WL Can.), affirming the conviction entered by Orr J., 364 Nfld. & P.E.I.R. 237, 1136 A.P.R. 237, 332 C.R.R. (2d) 50, [2015] N.J. No. 97 (QL), 2015 CarswellNfld 79 (WL Can.). Appeal dismissed.
Rosellen Sullivan and Michael Crystal, for the appellant.
Lloyd M. Strickland and Sheldon B. Steeves, for the respondent.
Nicholas E. Devlin and Amber Pashuk, for the intervener the Director of Public Prosecutions.
Susan Magotiaux and Katie Doherty, for the intervener the Attorney General of Ontario.
Nicolas Abran and Ann Ellefsen‑Tremblay, for the intervener Director of Criminal and Penal Prosecutions.
Daniel M. Scanlan, for the intervener the Attorney General of British Columbia.
Christine Rideout, for the intervener the Attorney General of Alberta.
Jill R. Presser and Kate Robertson, for the intervener Samuelson‑Glushko Canadian Internet Policy and Public Interest Clinic.
Frank Addario and James Foy, for the intervener Canadian Civil Liberties Association.
Gerald Chan and Annamaria Enenajor, for the intervener Criminal Lawyers’ Association.
Rachel Huntsman, Q.C., for the intervener Canadian Association of Chiefs of Police.
The judgment of Abella, Gascon and Brown JJ. was delivered by
Brown J. —
I. Introduction
[1] This appeal presents two issues: (1) whether the investigative technique employed by an undercover police officer amounted to a search or seizure of the appellant Sean Patrick Mills’ online communications under s. 8 of the Canadian Charter of Rights and Freedoms ; and, (2) whether police intercepted a private communication pursuant to s. 184.2 of the Criminal Code, R.S.C. 1985, c. C-46 , absent prior judicial authorization.
[2] These issues arise from a sting conducted by a police officer, who posed online as a 14-year-old girl, with the intent of catching Internet child lurers. Over two months, Mills sent several messages, using Facebook and Hotmail. Eventually, he was arrested in a public park where he had arranged a meeting with the “child”, and was charged under s. 172.1 of the Criminal Code with luring a child via the Internet. The entire operation occurred without prior judicial authorization.
[3] Using a screen capture software, the police introduced a record of the emails and messages as evidence at trial. Mills, arguing that his s. 8 Charter right to be free from unreasonable search and seizure was infringed, applied for the exclusion of the evidence. The trial judge, while finding that judicial authorization was required from the point at which the police had determined that Mills had a “potentially inappropriate interest” in a minor, nonetheless admitted the evidence and convicted Mills on one of the counts. The Newfoundland and Labrador Court of Appeal upheld his conviction, but found that Mills’ expectation of privacy was not objectively reasonable.
[4] While I agree with the Court of Appeal that Mills had no reasonable expectation of privacy, I adopt slightly different reasons. Specifically, he could not claim an expectation of privacy that was objectively reasonable in these circumstances. He was communicating with someone he believed to be a child, who was a stranger to him, and the undercover officer knew this when he created her. Therefore, since s. 8 of the Charter is not engaged, it follows that the sting did not require prior judicial authorization. I would therefore dismiss the appeal.
II. Overview of Facts and Proceedings
A. Background
[5] In February 2012, Constable Greg Hobbs of the Royal Newfoundland Constabulary created a Hotmail email account in order to pose as a 14-year-old girl, “Leann Power”. Shortly thereafter, he created a Facebook profile under the same name, listing Leann’s hometown as St. John’s and identifying her high school. One month later, Mills (then 32 years old) contacted “Leann” through Facebook, pretending to be 23 years old. Over the next two months, he sent her several messages and emails, including a photo of his penis.
[6] The police maintained a record of the online communications and emails, through a screen capture software called “Snagit”.
[7] On May 22, 2012, Mills was arrested in a park where he had arranged a meeting with Leann. He was charged with child luring under s. 172.1 of the Criminal Code . At trial, he argued that the police, which operated the sting entirely without judicial authorization, ought to have obtained authorization under s. 184.2 of the Criminal Code , and that the search and seizure (by Snagit) of the communications obtained via the fake online profile breached his s. 8 Charter right. He therefore applied to exclude the evidence.
B. Judicial History
(1) Newfoundland and Labrador Provincial Court — Orr Prov. Ct. J. ((2013), 7 C.R. (7th) 268)
[8] The trial judge found that the messages were “private communications”, as defined in s. 183 of the Criminal Code . Because the police were party to those communications, their interception was subject to the requirements of s. 184.2 (“Interception with consent”). While Facebook and Hotmail automatically generated a record of the communications, the use of Snagit generated an additional seizure. And, because Mills was using a username and a password, he had an expectation of privacy in his communications — which, while perhaps limited by the recipient’s use of an alias or false identity, was not eliminated.
[9] The judge therefore found that s. 8 of the Charter was breached. Judicial authorization was required from the point that Cst. Hobbs became aware of Mills’ “potentially inappropriate interest” in Leann.
[10] In separate reasons on the admissibility under s. 24(2) of the Charter of the communications, the trial judge found that admitting the evidence would not bring the administration of justice into disrepute (R. v. Mills (2014), 346 Nfld. & P.E.I.R. 102), and convicted Mills.
(2) Newfoundland and Labrador Court of Appeal — Welsh, Harrington and Hoegg JJ.A. (2017 NLCA 12)
[11] While the Court of Appeal upheld Mills’ conviction, it reasoned that there was no “interception” and that the trial judge had therefore erred in concluding that authorizations under s. 184.2 were required. Relying on the factors set out in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212 (at para. 18) by which to assess the reasonable expectation of privacy of an individual, the court found (at para. 23) that Mills must have known that “he lost control over any expectation of confidentiality [and] took a risk when he voluntarily communicated with someone he did not know”. In the result, his expectation of privacy was not objectively reasonable and his s. 8 rights were not infringed.
III. Analysis
A. Section 8 Charter Analysis: Mills Has No Reasonable Expectation of Privacy
[12] In R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, this Court reiterated that, to claim s. 8’s protection, an accused must show a subjectively held, and objectively reasonable, expectation of privacy in the subject matter of the putative search: para. 10; see also R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 34; Spencer, at para. 16; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18; R. v. Edwards, [1996] 1 S.C.R. 128, at para. 45; Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 159-60. I say “putative search”, since there is no “search and seizure” within the meaning of s. 8 if the claimant cannot demonstrate a reasonable expectation of privacy: R. v. Dyment, [1988] 2 S.C.R. 417, at p. 426; see also S. Penney, V. Rondinelli and J. Stribopoulos, Criminal Procedure in Canada (2nd ed. 2018), at pp. 151-52; H. Stewart, “Normative Foundations for Reasonable Expectations of Privacy” (2011), 54 S.C.L.R. (2d) 335, at p. 335.
[13] Objective reasonableness is assessed in the “totality of the circumstances”: Edwards, at paras. 31 and 45; Marakah, para. 10; Spencer, at paras. 16-18; Cole, at para. 39; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 26; Tessling, at para. 19. And, this Court has also consistently maintained that examining the totality of the circumstances entails an evaluation of all aspects of privacy: Edwards, at para. 45; Patrick, at para. 26. Four lines of inquiry guide the application of the test: (1) an examination of the subject matter of the alleged search; (2) a determination as to whether the claimant had a direct interest in the subject matter; (3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and (4) an assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances: Cole, at para. 40; Marakah, at para. 11; Spencer, at para. 18; Patrick, at para. 27; Tessling, at para. 32.
(1) What Was the Subject Matter of the Alleged Search?
[14] The subject matter of the alleged search is the electronic communications that took place on Facebook “chat” and over email. I see no legally significant distinction between these media of communication and the text message exchanges on cellphones which this Court considered in Marakah. Each can be accessed via many electronic devices connected to the Internet. And, in Marakah, this Court refused to distinguish among different messaging applications, since they are functionally equivalent as an “interconnected system . . . [which] . . . functions to permit rapid communication of short messages between individuals” — which exchanges, the Court added, is the very thing that law enforcement seeks to access: Marakah, at paras. 18-19.
[15] While in this case police were the direct recipients of Mills’ messages, it remains that he intended to have a one-on-one online conversation. This tends to support recognizing an expectation of privacy in those communications.
(2) Did Mills Have a Direct Interest in the Subject Matter?
[16] I accept that, as a participant to (and indeed a co-author of) the communications, Mills had a direct interest in the subject matter of the alleged search: see Marakah, at para. 21; Spencer, at para. 50; Patrick, at para. 31.
(3) Did Mills Have a Subjective Expectation of Privacy in the Subject Matter?
[17] In cases of alleged online child luring, it is not difficult for an accused to demonstrate a subjective expectation of privacy in online communications, since avoiding detection will be a priority. Users expect that their text messages or (as here) their functional equivalent will remain private: R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 34. And so it is unsurprising that, here, the Crown does not dispute that Mills expected the communications to be private.
[18] The evidence amply demonstrates this, since Mills instructed Leann to delete their messages regularly and to empty her deleted messages folder. When Leann commented on a publication he had posted on Facebook, he deleted it immediately then privately messaged her to explain that his mother was also a Facebook user and that he would “just rather not hear what she has to say about our age difference”: A.R., vol. 2, at p. 86. Replying to an email in which Cst. Hobbs had sent Mills pictures supposedly portraying Leann, Mills promised to keep their relationship secret. He added that he expected the same from her: A.R., vol. 2, at p. 122. Similarly, when Mills sent a picture of his erect penis to Leann, he instructed her to delete all of their conversations. He wrote: “can’t be too careful and I’d say you would get in trouble with pics like this”. The title of the email, “delete this after you look at it!!”, also shows his wish that their relationship remain hidden: A.R., vol. 2, at p. 135.
[19] This consideration therefore also weighs in favour of Mills’ claim to a reasonable expectation of privacy. It remains to consider, however, whether his subjective expectation of privacy was objectively reasonable: B. A. MacFarlane, R. J. Frater and C. Michaelson, Drug Offences in Canada (4th ed. (loose-leaf)), vol. 2, at p. 24-15.
(4) Is Mills’ Subjective Expectation of Privacy Objectively Reasonable?
[20] In order to challenge an alleged search under s. 8, Mills must demonstrate the objective reasonableness of his claim to privacy — the assessment of which must have regard to the totality of the circumstances. This is not purely a descriptive question, but rather a normative question about when Canadians ought to expect privacy, given the applicable considerations. This appeal involves a particular set of circumstances — the police created one of the communicants and controlled her every move — and two considerations become decisive: the nature of the investigative technique used by police, and the nature of the relationship between the communicants. Specifically, here, the investigative technique did not significantly reduce the sphere of privacy enjoyed by Canadians because the technique permitted the state to know from the outset that the adult accused would be communicating with a child he did not know. As I will explain, in these circumstances, any subjective expectation of privacy the adult accused might have held would not be objectively reasonable.
[21] Before turning to the normative question, as a preliminary matter, the nature of the privacy interest must be determined. Here, Mills asserts an informational privacy interest. As this Court held in Spencer, informational privacy includes at least three conceptually distinct although overlapping understandings of privacy: as secrecy, as control, and as anonymity: para. 38. Mills is asserting a “privacy as control” interest in the content of his communications, which represents the “assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit”: Spencer, at para. 40. While this privacy interest protects what information we share with others, it in turn relies on the control that a person exercises by choosing, selectively, those particular persons who will receive this information. In effect, Mills argues that he chose his recipient (here, someone he believed to be a child who was a stranger to him), and the police’s creation of a fake online profile prevented him being able to converse in secret with the person he chose.
[22] But crucial here is that Mills was communicating with someone he believed to be a child, who was a stranger to him. Mills’ claim is, therefore, that even when conversing with a child who was a stranger to him, he retained the ability to choose, selectively, with whom he would share certain communications. This presupposes that there is nothing inherently different between a relationship involving an adult and a child unknown to them, and other relationships, for the purposes of the s. 8 privacy analysis. I disagree and, on this point, find the statements of Nielsen J. in R. v. Graff, 2015 ABQB 415, 337 C.R.R. (2d) 7