Canada SC | ‘Unauthorised’ screen capturing of online communication by Police in undercover operation forms basis of child lurer’s conviction

Supreme Court of Canada: In a very interesting case, a bench of Wagner, CJ and Abella, Moldaver, Karkatsanis, Gascon, Brown and Martin, JJ. upheld the conviction granted to the appellant, Sean Patrick Mills, for luring a child. The Judgment consisted of four different opinions, all dismissing the appeal, though for different reasons.

Factual matrix

Greg Hobbs, a Police Officer, posted online via Hotmail and Facebook, as “Leann Power”, a 14-year old girl with an intent to catch Internet child lurers. Mills (appellant)contacted Leann on Facebook and exchanged several inappropriate messages and photos. Hobbs maintained a record of online communication using a screen capture software called “Snagit”. Mills arranged a meeting with Leann in a park where he was arrested and charged with child luring under Section 172.1 of the Criminal Code. He was tried and convicted by the trial court and his appeal thereagainst was dismissed by the Newfoundland and Labrador Court of Appeal. Aggrieved thereby, Mills filed the present appeal before the Supreme Court.

It is pertinent to note here that the entire operation by the Police concerned without prior judicial authorisation.

Issue

Whether the investigative technique employed by Hobbs, an undercover police officer, amounted to a search or seizure of the appellant Sean Patrick Mills’ online communications order under Section 8 of the Canadian Charter of Rights and Freedoms?

Section 8 of the Canadian Charter of Rights and Freedoms

This section secures a right to everybody in Canada against unreasonable search or seizure. It reads thus:

“8. Everyone has the right to be secure against unreasonable search or seizure.”

Decision of the Court

Per Brown, J. (Abella and Gascon, JJ. and himself)–

Section 8 of the Charter was not engaged when Hobbs captured Mills’ electronic communications. To claim the Sections 8 protection, an accused must show a subjectively held and objectively reasonable expectation of privacy in the subject matter of the putative search. Mills could not claim an expectation of privacy that was objectively reasonable because he 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.

Per Karakatsanis, J. (for Wagner, CJ and herself) —

When undercover police officers communicate in writing with individuals, there is no search or seizure within the meaning of Section 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 Section 8 of the Charter when they communicated with Mills 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.

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 Hon’ble justice fully concurred with the reasoning provided in the aforementioned two opinions stating them to be sound in law and each forming a proper basis for dismissing the appeal.

Per Martin, J. —

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.

The state surveillance of Mills’ private communications constituted a search that breached Section 8 of the Charter. It was objectively reasonable for Mills 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 authorisation. 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 authorisation, the search was unreasonable.

However, the application to exclude the evidence pursuant to Section 24(2) of the Charter warranted dismissal. 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.

In such view of the matter, and on the reasoning given by the Judges in their opinions as culled out above succinctly, the Court dismissed Sean Patrick Mill’s appeal and upheld his conviction. [R v. Mills, 2019 SCC 22, dated 18-04-2019]

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