A man who was convicted of luring a 14-year-old girl over the Internet had no expectation of privacy in his online communications with “Leann,” who in reality was an undercover police officer, the Supreme Court of Canada ruled today, in a judgement in which the judges diverged on approaches to privacy.
In a case concerning the legality of police procedures in capturing information in child-luring over the Internet, the questions before the high court were whether the investigative technique used in the case constituted unreasonable search and seizure under s. 8 of the Charter, and whether police in this case intercepted those communications without the judicial authorization mandated by the Criminal Code.
After undercover police officers created two fictitious online identities of 14-year-old females, the appellant was charged with four counts of internet luring. The Crown’s evidence included emails sent to the online identities by the appellant, and fragments of emails found on the appellant’s computer that matched parts of the emails sent to the online identities.
Some of the emails included sexual content and some made arrangements with one of the identities, “Leann,” to meet at a park; the appellant arrived at the park in circumstances matching the arrangements. Police officers linked some of the emails to the appellant’s social media, and used a screenshot program, Snagit, to capture the video display of personal computers to capture email communications.
The appellant sought to exclude the screen shots and the emails from evidence, charging that it was the result of unreasonable search and seizure, and that he had a reasonable expectation of privacy in his online communications.
In a 7-0 judgment with four sets of reasons, Justice Russell Brown penned the majority decision with Justices Rosalie Abella and Clément Gascon agreeing.
“While I agree with the Court of Appeal that [appellant Sean Patrick] Mills had no reasonable expectation of privacy, I adopt slightly different reasons,” Justice Brown wrote. “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 Charteris not engaged, it follows that the sting did not require prior judicial authorization. I would therefore dismiss the appeal. …
“This Court has recognized that children are especially vulnerable to sexual crimes … that the Internet allows for greater opportunities to sexually exploit children … and that enhancing protection to children from becoming victims of sexual offences is vital in a free and democratic society,” Justice Brown continued in his reasons.
Justice Andromache Karakatsanis, who wrote for herself and Chief Justice Richard Wagner, found that when undercover police officers communicate in writing with individuals, there is no search or seizure within the meaning of s. 8 of the Charter, because an individual cannot reasonably expect their words to be kept private from the person with whom they are communicating.
In this case, the undercover police officer, posing as “Leann,” conversed with the appellant using Facebook and email, which in Karakatsanis’s view was no different from someone speaking to an undercover officer in person; the screenshots made by police were simply copies of conversations that had been received.
Police must obtain judicial authorization for wiretaps of telephone conversations, but there is no such requirement for in-person conversations.
Justice Michael Moldaver agreed with the reasons of both Justices Brown and Karakatsanis.
Justice Sheilah Martin, although concurring in the result, did find a s. 8 Charter breach in the case. She agreed with the trial judge in finding that the appellant did have a reasonable expectation of privacy, and that authorization was required for the search and seizure of the digital communications; however, it was not necessary to exclude the evidence in this case, because to do so would bring the administration of justice into disrepute.
Lloyd Strickland, a prosecutor with the Attorney General of Newfoundland and Labrador who represented the Crown in the case, had argued before the SCC “that the only alternative to this [police sting] technique is, you expect a child to report this” to police, rather than police being enabled to gather the evidence on their own.
“I expect in a lot of cases children don’t go to their parents with information about child-luring on the Internet,” he says. The result of this decision is that police will still be able to conduct these operations, if they expect that the target would have no reasonable expectation of privacy, as in this case.
“It seems to me that they have made an exception for reasonable expectation of privacy in this case,” Rosellen Sullivan, a partner in Sullivan Breen King Defence in St. John's and counsel to the appellant, told Legal Feeds.
“They’ve characterized the nature of the relationship as a determinative factor,” she says, which is a content-based analysis the Court has confirmed is not appropriate.
“So, they have made an exception for cases based on the nature of the relationship.”
Jill Presser, principal at Presser Barristers in Toronto and counsel to the intervener Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) at the University of Ottawa, found “reason for optimism for privacy advocates and for Canadians who care about privacy.”
Although the plurality of the Court found that that there was no objectively reasonable expectation of privacy in this particular case, “they were at pains to limit this to the very specific circumstances that were before the Court in this case,” notably the luring of a minor, says Presser.
Sullivan and Presser have concerns about police methods used in this case. In creating a Facebook page as “Leann,” the undercover officer added real 14-year-olds from the local high school that “Leann” attended as Friends.
“I was hoping there would be some kind of regulation of that” by the Court, says Sullivan. “You can’t, in my view, engage actual 14-year-olds to help you [in a police investigation].”
“I would assume, as a parent, and a general member of the public, that this doesn’t pass the smell test,” she says.
This is a particular problem in the United States, Presser notes, where law enforcement officers set up fake Facebook profiles for the purposes of entrapment.
“It is improper for police to involve real girls,” she says, who could conceivably be targeted by predators the Facebook account is set up to entrap.
And should police require judicial authorization for seizing evidence of one method of one-on-one communication but not for another method?
“If we recognize that a police officer needs a wiretap authorization to intercept voice communications,” Presser says, “CIPPIC says police officers should be required to get wiretaps to intercept digital communications, because there's really no difference in this day and age between voice communications and digital communications.”
The Supreme Court recognized this in R. v. TELUS Communications Co., 2013 SCC 16,  2 S.C.R. 3, she adds; in that decision Justice Abella wrote that text messages are analogizable to voice communication.