Sean Patrick Mills Appellant v. Her Majesty The Queen, 2019 SCC 22

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. Undercoverpolice 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 forM 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 stateabsent prior judicial authorization. The police officer’s use of the screen capture software constituted an “interception” within the meaning of

Part VI of theCriminal Code. Because he did not obtain prior judicial authorization, the search was unreasonable. However, the application to exclude the evidence pursuant tos. 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 andreliable 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 theadministration 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 andchildren and youth are particularly vulnerable on the internet. State actors must be equipped with investigative powers that will allow them to root out sexualexploitation 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 berecognized as beyond state intrusion absent constitutional justification if Canadian society is to remain a free, democratic and open society. In a free and democraticsociety, 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, (SCC), [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 tocontend with a documented record of their words. This effectively strips freedom of thought and expression of any meaning. In response to Duarte, Parliamentenacted s. 184.2 of the Criminal Code which requires prior judicial authorization for electronic state participant surveillance.

In Duarte, documentation of privatecommunications occurred via state recording technology. Now, individuals communicate using electronic media, such that their conversations are inherentlyrecorded, 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 meanthat the state should no longer be required to seek authorization to access electronic recordings of private communications. Otherwise, there would be no meaningfulresiduum 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 thatattracted a reasonable expectation of privacy in Duarte. This duality should support, not undermine the protection of privacy rights, because a recording exists andthe state has unrestricted and unregulated access to it.

Contemporary electronic communications are analogous to electronic recordings because they possess thecharacteristics 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 beanalogized to oral conversations nor does it destroy any reasonable expectation of privacy.

Creating written, electronic records of one’s private communications is avirtual 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 applywhen 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 theconcept of the right to choose one’s listeners. An individual retains the reasonable expectation that the state will only permanently record a private communicationwith judicial authorization. Further, there are quantitative and qualitative distinctions between in-person and electronic state surveillance that make the analogybetween the “conversations” in Duarte and today’s electronic communications untenable.

Quantitatively, in-person conversations with undercover police officers arenot capable of subjecting the public to surreptitious electronic surveillance on a mass scale due to the practical resource constraints of undercover police workwhereas electronic surveillance technologies make possible mass surveillance as never before. Qualitatively, the ability to fabricate alternative identities has neverbeen more possible and online anonymity allows for a different order of state surveillance using believable, false identities.

Finally, state action that intrudes on areasonable 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 arecord simply by engaging in the conversation undermines the purpose of privacy rights and upsets the careful balance between the ability of the state to investigatecrime 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 putscourts in the business of evaluating personal relationships with a view to deciding which deserve Charter protection under s. 8, and which do not. Judicialdisapprobation 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 stateis 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 asting 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 couldand should obtain judicial authorization to surveil private, electronic communications. The risk that one’s co-conversant may disclose a private communication doesnot 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, theanalysis 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 isnot reasonable to assume that communications between adults and children who do not know each other will be criminal in nature. Content neutrality was developedto 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 thereforedo 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 protectionto 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 informationalcontent 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 rightbalance 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 stateinvestigative technique employed here constituted an “interception”. In communicating with M over a medium that inherently produces an electronic recording, thepolice officer “acquired” a record of the communication. If electronic police surveillance of private communications is only regulated by

Part VI to the extent thatextraneous recording software is employed, it is no longer sufficiently comprehensive. To be constitutionally compliant, state acquisition in real-time of privateelectronic communications requires regulation. Cases Cited By Brown J. Distinguished: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Wong, (SCC), [1990] 3 S.C.R. 36; R. v. Duarte, (SCC), [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 SCC67, [2004] 3 S.C.R. 432; R. v. Edwards, (SCC), [1996] 1 S.C.R. 128; Hunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145; R. v.Dyment, (SCC), [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), (ON CA), 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, (SCC), [1990] 1 S.C.R. 30; referred to: Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145;R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Wong, (SCC), [1990] 3 S.C.R. 36; R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3; R. v.Evans, (SCC), [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, (SCC), [1981] 1 S.C.R. 640; R. v.

Mack, (SCC), [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, (SCC), [1990] 1 S.C.R. 30; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; referred to: Hunter v.

SouthamInc., (SCC), [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, (SCC),[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, (SCC), [1992] 1 S.C.R. 527; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657; Rothman v. The Queen, (SCC), [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., 2008SCC 19, [2008] 1 S.C.R. 569; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Belnavis, (SCC), [1997] 3 S.C.R. 341; R. v. Dyment, (SCC), [1988] 2 S.C.R. 417; R. v. Collins, (SCC), [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), (SCC), [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, (SCC), [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 Handbookof 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 orseizure of the appellant Sean Patrick Mills’ online communications under s. 8 of the Canadian Charter of Rights and Freedoms; and, (2) whether police intercepteda 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 childlurers.

Over two months, Mills sent several messages, using Facebook and Hotmail. Eventually, he was arrested in a public park where he had arranged a meetingwith 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 judicialauthorization. [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. 8Charter right to be free from unreasonable search and seizure was infringed, applied for the exclusion of the evidence.

The trial judge, while finding that judicialauthorization was required from the point at which the police had determined that Mills had a “potentially inappropriate interest” in a minor, nonetheless admittedthe evidence and convicted Mills on one of the counts. The Newfoundland and Labrador Court of Appeal upheld his conviction, but found that Mills’ expectation ofprivacy 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, hecould 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 didnot 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 herhigh 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 herseveral 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 ofthe Criminal Code.

At trial, he argued that the police, which operated the sting entirely without judicial authorization, ought to have obtained authorization unders. 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 wereparty to those communications, their interception was subject to the requirements of s. 184.2 (“Interception with consent”). While Facebook and Hotmailautomatically generated a record of the communications, the use of Snagit generated an additional seizure.

And, because Mills was using a username and apassword, 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 noteliminated. [9] The judge therefore found that s. 8 of the Charter was breached. Judicial authorization was required from the point that Cst.

Hobbs becameaware 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 evidencewould 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 inconcluding 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) bywhich 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 anyexpectation of confidentiality [and] took a risk when he voluntarily communicated with someone he did not know”. In the result, his expectation of privacy was notobjectively 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 subjectivelyheld, 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, (SCC), [1996] 1 S.C.R. 128, atpara. 45; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at pp. 159-60.

I say “putative search”, since there is no “search and seizure” withinthe meaning of s. 8 if the claimant cannot demonstrate a reasonable expectation of privacy: R. v. Dyment, (SCC), [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 forReasonable 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 thatexamining 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 theapplication 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 thesubject 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 thissubjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances: Cole, at para. 40; Marakah, at para. 11; Spencer, atpara. 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 legallysignificant distinction between these media of communication and the text message exchanges on cellphones which this Court considered in Marakah. Each can beaccessed 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. Thistends 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 allegedsearch: 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 onlinecommunications, 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 beprivate. [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 aFacebook 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.

Hobbshad 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, atp. 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’dsay 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 assessmentof 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 oughtto expect privacy, given the applicable considerations.

This appeal involves a particular set of circumstances — the police created one of the communicants andcontrolled her every move — and two considerations become decisive: the nature of the investigative technique used by police, and the nature of the relationshipbetween the communicants. Specifically, here, the investigative technique did not significantly reduce the sphere of privacy enjoyed by Canadians because thetechnique 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 thesecircumstances, 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 aninformational privacy interest. As this Court held in Spencer, informational privacy includes at least three conceptually distinct although overlapping understandingsof privacy: as secrecy, as control, and as anonymity: para. 38.

Mills is asserting a “privacy as control” interest in the content of his communications, whichrepresents 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 childwho 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 thepurposes 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) 77, at paras. 63and 65, where the accused was charged with internet luring of a recipient who identified as being 14 years old, to be apposite: In sum, the Applicant sent highly personal information over the internet to a complete stranger, in the absence of any invitation to send such information, andwithout taking any reasonable steps to ascertain the identity of the recipient, to ensure his own anonymity, or to ensure any confidentiality with respect to theinformation he sent. . . .

I conclude in all of the circumstances that while the Applicant gambled or hoped that the chat and other material and information he sent would remain private,he had no basis upon which to form a[n] . . . objectively reasonable expectation of privacy in the circumstances. See also R. v. Ghotra, [2015] O.J. No. 7253 (QL) (S.C.J.), at para. 128. [23] This Court has recognized that children are especially vulnerable to sexual crimes (R. v-. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 2);that the Internet allows for greater opportunities to sexually exploit children (R. v.

Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at para. 2); and that enhancingprotection to children from becoming victims of sexual offences is vital in a free and democratic society (R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para.66, citing Laskin J.A. in R. v. Budreo (2000), (ON CA), 46 O.R. (3d) 481 (C.A.)). This leads me to conclude that, on the normative standard ofexpectations of privacy described by this Court (Tessling, at para. 42), adults cannot reasonably expect privacy online with children they do not know.

That thecommunication occurs online does not add a layer of privacy, but rather a layer of unpredictability. [24] The difficulty, of course, is that, in most situations, police are unlikely to know in advance of any potential privacy breach the nature of therelationship between the conversants — for example, whether the child truly is a stranger to the adult. We must also bear in mind that most relationships betweenadults and children are worthy of s. 8’s protection, including, but in no way limited to, those with family, friends, professionals, or religious advisors.

Significantly,and most importantly for the disposition of this appeal, this difficulty does not arise here. Here, the police were using an investigative technique allowing it to knowfrom the outset that the adult was conversing with a child who was a stranger.

Different normative considerations arise here, both as to the nature of the relationshipand how that informs the s. 8 analysis, and as to the degree by which the investigative technique reduces the sphere of privacy enjoyed by Canadians. [25] While this Court has not traditionally approached s. 8 from the perspective of the particular relationship between the parties subject to statesurveillance, this is because of its view of s. 8’s protection as content-neutral. In this case, the police technique permitted them to know that relationship in advanceof any potential privacy breach.

For example, in Dyment, the majority of the Court held that, while a person may consent to give a sample of blood requested by hisor her physician, it does not follow that all privacy interests in the sample have been relinquished once the blood has left the person’s body. The s. 8 interest was notviewed by the Court as being concerned solely with the blood, but principally with the relationship between the patient and the physician.

The Court wrote, at p.432: “the Charter extends to prevent a police officer . . . from taking . . . blood from a person who holds it subject to a duty to respect the dignity and privacy of thatperson” (emphasis added). While, therefore, the patient had relinquished physical control over the sample, he was able — by reason of the privacy interest imbuedin the relationship — to retain legal control over it. [26] In short, the sample was a proxy for s. 8’s purpose in Dyment, being to protect a particular relationship — which society values as worthy of s. 8’s

protection — from state intrusion. Applied to this appeal, and while I have said that many adult-child relationships are also worthy of s. 8’s protection — therelationship between Mills and “Leann” is not one of them, if expectations of privacy are to reflect a normative (rather than a purely descriptive) standard.

Theconclusion may or may not apply to other types of relationships, depending on the nature of the relationship in question and the circumstances surrounding it at thetime of the alleged search. [27] As to the second consideration — the nature of the investigative technique used — what renders Mills’ expectation of privacy objectivelyunreasonable is that, in creating the fictitious child, police knew from the outset that the relationship between Mills and his interlocutor was similarly fictitious, andthat “Leann” was truly a stranger to him.

The police could, therefore, confidently and accurately conclude that no s. 8 concern would arise from their reviewingthese particular communications, because the necessary information about the nature of the relationship between the accused and the “child” was already knownfrom the outset. [28] Our s. 8 jurisprudence is predicated on police obtaining prior authorization before a potential privacy breach. But no such potential exists here.The police created the fictitious child and waited for adult strangers to message them. This is what distinguishes this case from R. v.

Wong, (SCC),[1990] 3 S.C.R. 36, and Marakah, where the state was intruding upon an unknown (to them) relationship. At most, police had a mere theory about the relationshipbetween the conversants: in Wong, for example, they were thought to be illegal gamblers. It would only be through an examination of the conversation that the truenature of the relationship could have been definitively known. In contrast, police knew from the outset the nature of the relationship between these conversants. Thisalso distinguishes this case from the impersonation-through-informer technique employed in R. v.

Duarte, (SCC), [1990] 1 S.C.R. 30. [29] This investigative technique allowed the police to know from the outset the nature of the relationship between Mills and “Leann”. As mycolleague Karakatsanis J. notes, this technique involved police simply responding to messages sent directly to them as “Leann”.

No risk of potential privacy breach— for example, police sifting various communications before being able to ascertain the relationship — arose here. [30] My colleague Martin J. says that these reasons “put courts in the business of evaluating the Canadian public’s personal relationships with a viewto deciding which among them deserve Charter protection under s. 8, and which do not” (para. 110) and “effectively sanctio[n] the unjustified state intrusion intoswaths of all individuals’ private lives in the hopes of capturing some illegal communications” (para. 131).

With respect, the alias-based sting operation employedhere is not some first step to a dystopian world of mass unregulated surveillance. Nothing in these reasons suggests or should be taken as suggesting that police cansimply monitor communications in the hope of stumbling upon a conversation that reveals criminality.

The proposition that I advance is a modest one: to repeat, it isthat Mills cannot establish an objectively reasonable expectation of privacy in these particular circumstances, where he conversed with a child online who was astranger to him and, most importantly, where the police knew this when they created her. [31] With respect for those who view the matter differently, I simply cannot accept that, on the facts of this case, “giving [judicial] sanction to theparticular form of unauthorized surveillance in question would see the amount of privacy and freedom remaining to citizens diminished to a compass inconsistentwith the aims of a free and open society”: Wong, at p. 46.

I agree with the Court of Appeal’s conclusion that Mills did not have a reasonable expectation of privacyin these circumstances. B. Additional Consideration [32] My conclusion on the unreasonableness of Mills’ expectation of privacy is determinative. That said, I offer this further observation on whetherPart VI of the Criminal Code captured these communications because they consisted of “private communication”. [33] In my view, s. 184.2 of the Criminal Code was not applicable here because there was no “private communication”.

Section 184.2(1) states that“[a] person may intercept, . . . a private communication where either the originator of the private communication or the person intended by the originator to receiveit has consented to the interception and an authorization has been obtained pursuant to subsection (3)”.

Section 183 defines “private communication” and “intercept”for the purpose of

Part VI: 183 In this Part, . . . intercept includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof; . . . private communication means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originatorto be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be interceptedby any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically orotherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it; . . . [34] Reading this definition together with this Court’s elaboration of s. 8 of the Charter, a communication made under circumstances in which there isno reasonable expectation of privacy cannot constitute a “private communication” for the purposes of s. 183: R. v.

TELUS Communications Co., 2013 SCC 16,[2013] 2 S.C.R. 3, at para. 32; S. Penney, “Consent Searches for Electronic Text Communications: Escaping the Zero-Sum Trap”, (2018) 56 Alta. L. Rev. 1, at p.18. IV. Conclusion [35] In the result, Mills has failed to establish that he had a reasonable expectation of privacy in his conversations with “Leann”. I would, therefore,dismiss the appeal. The reasons of Wagner C.J. and Karakatsanis J. were delivered by [36] Karakatsanis J. — I agree with my colleague Brown J. on the outcome of this appeal. However, I reach this conclusion for different reasons.

Inmy view, when undercover police officers communicate in writing with individuals, there is no “search or seizure” within the meaning of s. 8 of the CanadianCharter of Rights and Freedoms. This is because it is not reasonable to expect that your messages will be kept private from the intended recipient (even if theintended recipient is an undercover officer).

Further, the police conduct does not amount to a search or seizure — the police did not take anything from the accusedor intrude on a private conversation; the undercover officers simply received messages sent directly to them. [37] Here, the police did not interfere with a private conversation between other individuals; they directly participated in it. Because the conversation

occurred via email and Facebook messenger, it necessarily took place in a written form. The screenshots from the computer program “Snagit” are simply a copy ofthe pre-existing written record and not a separate surreptitious permanent record created by the state. Thus, the police did not violate s. 8 when they communicatedwith Mr. Mills and retained screenshots of those conversations. I would dismiss the appeal. I. Analysis [38]

Section 8 protects the right to be secure against unreasonable searches and seizures. In interpreting s. 8, courts seek to strike an acceptablebalance, in a free and democratic society, between sometimes conflicting interests in the privacy necessary for personal dignity and autonomy and the need for asecure and safe society: see Hunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145, at pp. 159-60. [39] The right to be secure against unreasonable searches and seizures must keep pace with technological developments to ensure that citizens remainprotected against unauthorized intrusions upon their privacy by the state: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 102; see also R. v. Wong, (SCC), [1990] 3 S.C.R. 36, at p. 44. However, as technology evolves, the ways in which crimes are committed — and investigated — also evolve. Thiscase implicates both of these consequences.

It requires us to consider what, if any, judicial pre-authorization is necessary when a common police investigativetechnique — an undercover operation — is conducted electronically to “identify and apprehend predatory adults who, generally for illicit sexual purposes, troll theInternet to attract and entice vulnerable children and adolescents”: R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3, at para. 24. A. Electronic Conversations in Undercover Police Investigations [40] In my opinion, no “search or seizure” occurred when Constable Hobbs, posing as a young girl, conversed with Mr.

Mills through Facebookmessenger and email. [41] Not every investigatory technique used by the police constitutes a search or seizure for constitutional purposes — s. 8 may be engaged onlywhere the investigatory conduct intrudes upon a person’s reasonable expectation of privacy: R. v. Evans, (SCC), [1996] 1 S.C.R. 8, at para. 11; R.v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 34.

As Doherty J.A. recognized, “[w]hen decidingwhether state conduct amounts to a search or seizure, the focus is not so much on the nature of the state conduct as it is on the impact of the state conduct on theprivacy interests of the s. 8 claimant”: R. v. Orlandis-Habsburgo, 2017 ONCA 649, 40 C.R. (7th) 379, at para. 39. [42] This Court has long recognized that s. 8 does not prevent police from communicating with individuals in the course of an undercoverinvestigation. This is because an individual cannot reasonably expect their words to be kept private from the person with whom they are communicating.

Section 8does not apply because the investigatory technique of engaging in conversation, even where the officer is undercover, does not diminish an individual’s reasonableexpectation of privacy. Both R. v. Duarte, (SCC), [1990] 1 S.C.R. 30, and R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535, involved conversationsbetween undercover police officers and the accused. In neither case did the conversation itself engage s. 8. As La Forest J. wrote in Duarte, at p. 57, “[a]conversation with an informer does not amount to a search and seizure within the meaning of the Charter.

Surreptitious electronic interception and recording of aprivate communication does” (emphasis added). In her concurring reasons in Fliss, at para. 12, Arbour J. echoed this point, holding that “a conversation with aninformer, or a police officer, is not a search and seizure. Only the recording of such conversation is.” [43] Similarly, undercover police investigations have long been recognized as legitimate and important law enforcement tools. Police do not need toobtain judicial pre-authorization before beginning an undercover investigation.

This Court has acknowledged that police may employ creativity and subterfuge intheir work of preventing and investigating crime, although the police conduct must not threaten the integrity of the criminal justice system: see R. v. Oickle, 2000SCC 38, [2000] 2 S.C.R. 3, at paras. 65-67, citing Rothman v. The Queen, (SCC), [1981] 1 S.C.R. 640, at p. 697 (per Lamer J. (as he then was),concurring); R. v. Mack, (SCC), [1988] 2 S.C.R. 903, at pp. 916-17; R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 83. [44] Here, an undercover police officer conversed with Mr. Mills using Facebook messenger and email.

Obviously, Mills did not realize he wastalking to someone who was an undercover officer. However, this is no different from someone who unwittingly speaks to an undercover officer in person. Flissmakes clear that individuals conversing orally with an undercover officer are not thereby subject to a search or seizure within the meaning of the Charter, even ifthey have no reason to believe they are speaking to the police. In this case, Mr. Mills clearly intended for the recipient (who happened to be a police officer) toreceive his messages. It would not be reasonable for him to expect otherwise.

Because he had no reasonable expectation that his messages would be kept privatefrom the intended recipient, s. 8 is not engaged. [45] The fact that the conversation took place in a written form, rather than orally as in Duarte and Fliss, does not transform it into a search or seizure.For example, if Mills had sent a letter or passed a note to an undercover officer, s. 8 would not require the officer to get a warrant prior to reading it. [46] The appellant submits that the combined effect of Duarte and Wong requires the police to always obtain prior judicial authorization beforeengaging in individual undercover conversations online.

In his view, the police conduct in this case is “indistinguishable” from the surreptitious recording in Duarte. [47] However, the common thread between Duarte and Wong was not the use of undercover officers, but the state’s unilateral decision to makesurreptitious audio and video recordings of oral conversations. This prospect was troubling because the police transformed an ephemeral oral conversation into apermanent record without the knowledge of the person who was speaking. The issue was whether the state’s newfound technological ability to “listen in” onconversations should require judicial pre-authorization.

And with respect to the prospect of surreptitious audio and video recordings of our everyday lives, the Courtconcluded that the threat to individual freedom and autonomy outweighed the state’s valid law enforcement objectives. [48] But in this case, Mr. Mills chose to use a written medium to communicate with Cts. Hobbs. Email and Facebook messenger users are not onlyaware that a permanent written record of their communication exists, they actually create the record themselves. The analogy with Duarte is to the oral conversation,not the surreptitious recording of that conversation.

Duarte did not deal with a written record created by an individual communicating with an undercover officer. Assuch, it does not require the police to obtain a warrant before using modern communication methods such as text messages or emails during undercoverinvestigations. [49] My colleague Martin J. raises the spectre of “surreptitious electronic surveillance on a mass scale”: para. 103. However, the investigatorytechnique in this case involved a one-on-one conversation between an undercover officer and the accused.

This Court has held that generally, police attempts toobtain written, electronic conversations are subject to s. 8. Police are required to obtain a warrant before accessing text message conversations stored bytelecommunications providers: R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at paras. 77-81; R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3,at paras. 12-13 and 48-49.

Similarly, viewing a text message conversation between two other parties, without their consent, also engages s. 8 of the Charter: R. v.Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 54-57. [50] This approach does not re-introduce the “risk analysis” rejected in Duarte.

Section 8 protects “the expectation that our words will only be heardby the person or persons to whom we direct our remarks”: Duarte, at p. 47. In this case, that is precisely what occurred — Mills’ communications were received bytheir intended recipient, who happened to be a police officer. By communicating online with a person he had never met before, Mills opened himself up to thepossibility that the other person was a police officer.

The Charter cannot be invoked “to protect us against a poor choice of friends”: Duarte, at p. 57. [51] Thus, s. 8 of the Charter is not engaged merely because an undercover officer converses electronically with an individual. This is because (1) it isnot reasonable for the sender to expect that the messages will be kept private from the intended recipient (even if the recipient is an undercover officer); and (2) thepolice conduct of communicating with an individual does not amount to a search or seizure.

Either way, the outcome is the same — s. 8 is not violated when policesimply communicate with an individual. [52] The alternative conclusion would significantly and negatively impact police undercover operations, including those conducted electronically: seeS. C. Hutchison et al., Search and Seizure Law in Canada (loose-leaf), at s. 4(c)(v)(B) (discussing whether a communication obtained by impersonation or mistakehas been intercepted). I agree with the intervener Canadian Association of Chiefs of Police that requiring police officers to obtain judicial authorization, especially

Part VI authorization, prior to engaging in this type of undercover operation would “effectively hamstring the ability of the police to proactively enforce [child luring offences]”: I. F., at para. 5. Particularly in a case like this, where there is no suspect before the investigation commences, police would not have grounds to obtain a warrant or

Part VI authorization. As courts have recognized, undercover police operations are an important tool in enforcing the child luring offences and protecting vulnerable children: Levigne , at para. 25 ; R. v. Alicandro , 2009 ONCA 133 , 95 O.R. (3d) 173 , at para. 38 . Requiring police to obtain judicial pre-authorization before even launching an electronic undercover investigation simply does not strike an appropriate balance between individual privacy and the safety and security of our children. B.

Using “Snagit” to Take Screenshots of an Electronic Conversation [ 53 ] Mills submits that by using “Snagit” to take screenshots of the electronic messages he exchanged with the undercover officer, the police further violated his s. 8 Charter rights. [ 54 ] The question remains then as to whether the use of “Snagit” otherwise amounts to a search or seizure, requiring some form of judicial authorization.

Of course, even if the Crown were not permitted to tender the printed screenshots as evidence, the Crown could still call the officer to testify about what the accused said and the written record could be used to refresh the officer’s memory: Duarte , at pp. 58 and 60; Fliss , at paras. 7, 12 and 43-45 . However, permanently preserving the accused’s own words, in a complete and accurate format, gives the state compelling evidence against the accused.

Does the state’s use of screenshot technology intrude upon the accused’s reasonable expectation of privacy such that it constitutes a search or seizure? [ 55 ] In my opinion, it does not. As discussed above, the permanent record of the conversation resulted from the medium through which Mr. Mills chose to communicate. He cannot reasonably expect that the recipient would not have a written record of his words. [ 56 ] For this reason, the police officer’s use of “Snagit” is also not a search or seizure.

I cannot see any relevant difference in the state preserving the conversations by using “Snagit” to take screenshots of them, by using a computer to print them, or by tendering into evidence a phone or laptop with the conversations open and visible. Ultimately, the “Snagit” screenshots are just a copy of the written messages. This use of technology is not intrusive or surreptitious state conduct. [ 57 ] My conclusion that s. 8 is not engaged in this case does not mean that undercover online police operations will never intrude on a reasonable expectation of privacy.

As technology and the ways we communicate change, courts play an important role in ensuring that undercover police techniques do not unacceptably intrude on the privacy of Canadians. Particularly in the context of the digital world, it is important for courts to consider both the nature and the scale of an investigative technique in determining whether s. 8 is engaged. With respect to the concern about the prospect of broader surveillance made possible by technological advances, as Binnie J. observed in Tessling , “[w]hatever evolution occurs in future will have to be dealt with by the courts step by step.

Concerns should be addressed as they truly arise”: para. 55. [ 58 ] Because the police techniques used here did not engage the protections of s. 8, judicial pre-authorization was not required. Therefore, it is unnecessary to consider whether any of the police techniques constituted an “intercept” as defined in

Part VI of the Criminal Code , R.S.C. 1985, c. C-46 . II. Conclusion [ 59 ] The ultimate normative issue under s. 8 is “whether, in light of the impact of an investigative technique on privacy interests, it is right that the state should be able to use that technique without any legal authorization or judicial supervision”: H. Stewart, “Normative Foundations for Reasonable Expectations of Privacy” (2011), 54 S.C.L.R. (2d) 335, at p. 342 . I acknowledge that the Court in Duarte did not anticipate the widespread use of electronic communication.

I also recognize that many individuals engage in extensive, private online conversations with people they have not previously met in person. But, while the Internet empowers individuals to exchange much socially valuable information, it also creates more opportunities to commit crimes. The anonymity of the online world enables some predatory adults to gain the trust of vulnerable children and entice them into sexual activity: R. v.

Legare , 2009 SCC 56 , [2009] 3 S.C.R. 551 , at para. 2 ; Levigne , at para. 25 . [ 60 ] Undercover police operations, using the anonymity of the Internet, allow police officers to proactively prevent sexual predators from preying on children. For decades, police officers have used undercover operations to investigate and prevent crimes. The fact that conversations with undercover officers now occur in written form on the Internet does not, in itself, violate s. 8 of the Charter . However, this conclusion in no way gives the police a broad license to engage in general online surveillance of private conversations.

Both s. 8 of the Charter , as outlined in TELUS , Marakah and Jones , as well as the common law doctrines of abuse of process and entrapment place limits on the ways police can use electronic communications in the course of an investigation. [ 61 ] Interveners in this case raised the concern about the extent to which the police are permitted to impersonate other individuals to further their undercover objectives.

The intervener Criminal Lawyers’ Association submits that not applying s. 8 in the present case opens the door to the police posing as internet therapy providers or even creating their own dating service in an effort to monitor the addictions or sexual preferences of Canadians: I. F., at paras. 4-5. [ 62 ] These scenarios are far removed from the facts of this particular case, where the officer created a single Facebook profile and did not initiate contact with anyone. More importantly, I am not persuaded that either s. 8 of the Charter or

Part VI of the Criminal Code would be the proper vehicles to address these concerns. The threat of rogue police undercover investigations is better characterized as a broader threat to the integrity of the justice system.

As Lamer J. recognized in Rothman , certain undercover techniques, such as posing as a prison chaplain or a legal aid lawyer to elicit incriminating evidence, go too far and must be condemned by courts because they threaten the integrity of the justice system itself : pp. 696-97. [ 63 ] If such cases arise, where police impersonation tactics offend society’s notions of decency and fair play, courts should invoke existing common law mechanisms to regulate undercover police investigations, including those conducted online.

The abuse of process doctrine guards against coercive police conduct, such as preying on an accused’s vulnerabilities, which threatens trial fairness and the integrity of the justice system: Hart , at paras. 111-18 . In addition, if police go beyond providing an opportunity to commit an offence and actually induce its commission, the entrapment doctrine applies: Mack , at pp. 964-66. Indeed, courts have used the entrapment doctrine to scrutinize sting operations similar to the one used here: see R. v. Chiang , 2012 BCCA 85 , 286 C.C.C. (3d) 564, at paras. 14-21 ; R. v.

Bayat , 2011 ONCA 778 , 108 O.R. (3d) 420, at paras. 15-23 . In such circumstances, trial judges have “wide discretion to issue a remedy — including the exclusion of evidence or a stay of proceedings”: Hart , at para. 113 ; see also R. v. Babos , 2014 SCC 16 , [2014] 1 S.C.R. 309, at paras. 30-47 and 53-57 . [ 64 ] My conclusion that the Charter does not require judicial authorization before police participate in undercover online conversations of this kind also does not prevent Parliament from enacting legislation to regulate these operations.

Indeed, given the prevalence of electronic communication and the prospect of increased police surveillance online, a legislative scheme could provide helpful guidance about the appropriate use and reporting of undercover police techniques to prevent and investigate online crime. [ 65 ] In conclusion, there was no violation of s. 8 when the police communicated with Mills and used “Snagit” to preserve the written record of those conversations. The screenshots of the conversations were therefore admissible evidence. I would dismiss the appeal.

The following are the reasons delivered by [ 66 ] Moldaver J. — Although my colleagues Karakatsanis J. and Brown J. provide separate reasons for dismissing the appeal, in my view, each set of reasons is sound in law and each forms a proper basis for upholding the order of the Newfoundland and Labrador Court of Appeal dismissing Mr. Mills’ appeal. [ 67 ] Accordingly, I concur in the result and would likewise dismiss the appeal. The following are the reasons delivered by Martin J. —

I. Introduction [68] The regulation of an ever-changing internet presents many challenges for lawmakers and courts and requires the careful balancing of rights andinterests. [69] The sexual exploitation of a minor is an abhorrent act that Canadian society, including this Court, strongly denounces. In an online context, adultswho prey on children and youth for a sexual purpose can gain the trust of these young people through anonymous or falsified identities, and can reach into theirhomes more easily than ever before, from anywhere in the world.

Children and youth are therefore particularly vulnerable on the internet and require protection. [70] Parliament has addressed the unique risks posed by online sexual predation through, inter alia, s. 172.1 of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”). As tools of crime grow more sophisticated, so must law enforcement techniques.

State actors must be equipped with investigative powers that willallow them to effectively and proactively root out the sexual exploitation of children online. [71] Such investigative powers, however, need to be counter-balanced with the state’s obligation to respect the privacy rights of its citizens.Parliament has taken steps in this regard by legislating when the state must seek judicial authorization for accessing certain types of private communications: seePart VI of the Code, “Invasion of Privacy”. However, the relevant provisions in

Part VI were enacted before the widespread use of modern means of electroniccommunications, which have the capacity to generate a written record of conversations. [72] This appeal asks whether the state should be permitted to conduct warrantless surveillance of private, electronic communications, or whetherthat state surveillance should be regulated. In my respectful view, protecting children from online sexual exploitation, while essential, does not require theunregulated state surveillance of the public’s private electronic communications.

For the reasons that follow, I conclude that members of society have a reasonableexpectation that their private, electronic communications will not be acquired by the state at its sole discretion.

If the police wish to acquire a record of thosecommunications, for the legitimate and vitally important purpose of preventing sexual crimes against young people, such investigative activities must be regulated.The precise nature of such regulation is best left to Parliament. [73] Thus, while the state should be empowered to prevent sexual predators from targeting children and youth online, members of society must not,and need not, be subjected to the unregulated state surveillance of their private electronic communications in order for the state to achieve these aims. II.

Relevant Facts [74] In 2012, members of the Royal Newfoundland Constabulary’s Child Exploitation Unit, one of whom was Constable Hobbs, conducted a stingoperation with the intent of catching internet child lurers. On February 28 and March 12, 2012, Cst. Hobbs created an email and a Facebook account for a fictitious14-year-old individual whom he called “Leann Power”. Cst. Hobbs testified that he knew of no policy manuals to guide this type of investigation, and that hisinvestigatory tactics were left to his discretion. On “Leann’s” Facebook profile, Cst. Hobbs pretended that “Leann” resided in St.

John’s and was a student at a localhigh school. He obtained a photograph from the internet to use as “Leann’s” profile picture. While Cst. Hobbs did not make any “friend” requests, he received andaccepted “friend” requests that resulted from “Leann’s” affiliation with the local high school: see (2013), 343 Nfld. & P.E.I.R. 128, at paras. 3-4 and 40 (“DecisionRe s. 8”). [75] On March 20, 2012, Cst. Hobbs received a Facebook message from Mr. Mills. Over the next two months, Mr. Mills exchanged severalFacebook messages and emails with “Leann”. Ultimately, Mr.

Mills was arrested in a public park where he had arranged to meet “Leann”. He was charged with fourcounts of luring a child under s. 172.1 of the Code: Decision Re s. 8, at paras. 1 and 5-10. III. Admissibility of the Electronic Communications Between Mr. Mills and “Leann” [76] Mr.

Mills challenged the admissibility of the electronic communications exchanged between himself and “Leann” on two grounds: first, that thepolice failed to comply with s. 184.2 of the Code by not obtaining authorization prior to intercepting private communications; and second, that the state actionconstituted an unreasonable search and seizure contrary to s. 8 of the Charter. [77] My colleagues have found that Mr. Mills had no reasonable expectation of privacy in his communications with “Leann”. Without a reasonableexpectation of privacy, there was no search.

Further, Brown J. concludes that s. 184.2 of the Code does not apply to the case at bar, while Karakatsanis J. finds itunnecessary to consider the question. [78] Respectfully, I depart from these conclusions. Mr. Mills had a reasonable expectation of privacy in the impugned communications, and thestate’s surveillance of those private communications therefore constituted a search. Further, the police use of “Snagit” screenshot software was regulated by s. 184.2of the Code: Cst. Hobbs intercepted private communications when he used “Snagit” to record his communications with Mr. Mills in real-time.

As such, he wasrequired to obtain an authorization pursuant to s. 184.2. Because Cst. Hobbs did not do so, he breached Mr. Mills’ s. 8 Charter-protected privacy right. Further, evenif Cst. Hobbs had chosen not to employ extraneous screen recording software, his investigative technique may still have constituted an “interception” for thepurposes of s. 184.2. [79] However, the admission into evidence of the impugned communications would not bring the administration of justice into disrepute under s.24(2) of the Charter. I would therefore dismiss the appeal. IV.

Reasonable Expectation of Privacy in Private Electronic Communications [80] Reasonable expectation of privacy is assessed on a normative, rather than descriptive, standard: Hunter v. Southam Inc., (SCC),[1984] 2 S.C.R. 145, at pp. 159-60; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 42; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 14; R. v.Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 18; R. v. Reeves, 2018 SCC 56, at para. 28.

This means that the question to be asked is whether the privacyclaim must “be recognized as beyond state intrusion absent constitutional justification if Canadian society is to remain a free, democratic and open society”: R. v.Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at para. 87. [81] When responding to this question in the context of this appeal, the starting point is this Court’s decision in R. v. Duarte, (SCC),[1990] 1 S.C.R. 30. A.

The Case of Duarte Is the Starting Point [82] As early as 30 years ago, this Court held that surreptitious participant electronic surveillance by the state requires regulation: Duarte, and itscompanion case, R. v. Wong, (SCC), [1990] 3 S.C.R. 36. In Duarte, a group conversation about a cocaine transaction was surreptitiously recordedwith the consent of two of the parties to the conversation — an informer and an undercover police officer.

When a participant in a conversation either surreptitiouslyrecords that conversation or consents to the conversation being surreptitiously recorded, it is called “participant surveillance”. At the time, s. 178.11(2)(

a) of theCode permitted parties to a conversation to conduct electronic participant surveillance without a warrant. On the strength of a normative privacy analysis, La ForestJ. held that the risk of warrantless surveillance at the sole discretion of the police cannot be imposed on all members of society. He further held that this principleapplies equally in the case of participant surveillance.

As such, warrantless electronic participant surveillance by the state infringes s. 8 of the Charter. [83] At its core, surreptitious electronic recording of private communications by the state attracted a privacy interest in Duarte because recording acommunication transforms the originator’s ephemeral words into documentary evidence. The act of recording, therefore, “annihilates the very important right . . . tochoose the range of our auditors” (p. 51).This concern was expressed by Harlan J., dissenting in United States v.

White, 401 U.S. 745 (1971), at pp. 787-89 andreferenced in Duarte, at p. 54, as “having to contend with a documented record”. The risk of documentation and permanence is evoked in two of Duarte’s foremoststatements of principle:

. . . the regulation of electronic surveillance protects us from a risk of a different order, i.e., not the risk that someone will repeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words . . . . . . . the law recognizes that we inherently have to bear the risk of the “tattletale” but draws the line at concluding that we must also bear, as the price of choosing to speak to another human being, the risk of having a permanent electronic recording made of our words . [Emphasis added; pp. 44 and 48.] [ 84 ] Duarte ’s concern with the recording of private communications was rooted in the conviction that if members of the public believed that every time they spoke they were at risk of producing a documented record of their communications for the state to use at its sole discretion, privacy from state intrusion would no longer exist, and freedom of thought and expression would be effectively stripped of meaning: p. 44.

Since 1990, it has therefore been accepted that to leave el

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