R. v. Mills, 2017 NLCA 12

Her Majesty the Queen (appellant/respondent by cross appeal) v. Sean Patrick Mills (respondent/appellant by cross appeal) (15/25 and 15/33) Indexed As: R. v. Mills 2017 NLCA 12 1 C.A.N.L.R. 488 Court of Appeal of Newfoundland and Labrador Welsh, Harrington and Hoegg JJ.A. February 10, 2017

Summary: The Crown sought leave to appeal and appealed Sean Patrick Mills’ sentence of twelve months imprisonment and one year on probation after a conviction for communicating by means of a computer with a person he believed to be under the age of sixteen years for a sexual purpose contrary to

section 172.1(1) (

b) of the Criminal Code . Mr. Mills communicated for a sexual purpose via Facebook with an undercover police officer posing as a fourteen year old girl. The police used a commonly available public program called Snagit to capture and copy the information on the screen. The images were used as evidence against Mr. Mills. The trial judge concluded that Mr. Mills’ right “to be secure against unreasonable search or seizure” under

section 8 of the Canadian Charter of Rights and Freedoms was infringed and that the officer failed to meet requirements under the Criminal Code to obtain authorizations related to the electronic communications, but admitted the evidence. He sentenced Mr. Mills to fourteen months’ imprisonment, but reduced the sentence by two months for the Charter breach. The Crown appealed the sentence on the basis that the trial judge erred in finding that

Part VI of the Criminal Code was engaged and that Mr. Mills’ rights under

section 8 of the Charter were infringed. Mr. Mills cross-appealed his conviction on the basis that, after a finding of the breach, the evidence should have been excluded under section 24(2) of the Charter . Held: Leave to appeal against sentence granted, appeal allowed, service of additional time in prison stayed; cross-appeal against conviction dismissed. Welsh J.A. (Harrington and Hoegg JJ.A. concurring): Leave to appeal was required under section 676(1) (

d) of the Criminal Code , but was granted as the interaction between

section 8 of the Charter and

Part VI of the Criminal Code , the use of electronic communications by the police, and the effect on the sentence imposed met the requirement for an arguable basis for this appeal. ______________________________ Affirmed, 2019 SCC 22 .

Part VI of the Criminal Code , which deals with the “Invasion of Privacy”, specifies authorizations that police are required to obtain prior to intercepting private communications.

Section 184.2(1) permits the interception of a communication, but requires judicial authorization. The definition of “Intercept” in

section 183 clarifies the various ways in which an interception may be made. Its language does not alter the ordinary meaning of an interception which requires the involvement of a third party. Where there is direct communication between two people, the intended recipient cannot be characterized as having “intercepted” a communication. The fact that the recipient is a police officer cannot change the nature of the communication or transform a receipt by the intended recipient into an interception.

Part VI of the Code does not apply to the facts of this case. The trial judge erred in concluding that authorizations under

section 184.2

were required. The use of the Snagit computer software does not alter the conclusion that the officer did not intercept Mr. Mills’ communications.Making a record of a received electronic communication using a software program for that purpose does not constitute an interception ofthe communication. In finding that Mr. Mills’ rights under

section 8 of the Charter were infringed, the trial judge relied on his conclusion that authorizationswere required under

section 184.2 of the Criminal Code. Since this constituted an error, this rationale could not be relied upon toestablish an infringement of

section 8 of the Charter. There was another basis on which Mr. Mills could establish an infringement of

section

Section 8 guards against unreasonable searchand seizure which protects a reasonable expectation of privacy. While Mr. Mills may have had a subjective expectation of privacy in hisFacebook messages, that expectation was not objectively reasonable in the circumstances, since he was using electronic social media tocommunicate and share information with a person he did not know and whose identity he could not confirm. The appeal against sentence was granted and a sentence of 14 months imprisonment affirmed. The cross-appeal against conviction wasdismissed.

However, service of the additional two months imprisonment was stayed. Cases cited: R. v. Blok-Andersen, 2016 NLCA 9, 376 Nfld. & P.E.I.R. 130 Hunter v. Southam, (SCC), [1984] 2 S.C.R. 145 R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212 Counsel: Lloyd M. Strickland, for the appellant/respondent by cross-appeal; Rosellen Sullivan, for the respondent/appellant by cross-appeal. This appeal was heard on November 9, 2016 before Welsh, Harrington and Hoegg JJ.A.

The following judgment was delivered on February 10, 2017 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [1] Sean Patrick Mills was convicted of communicating by means of a computer with a person he believed to be under the age ofsixteen years for a sexual purpose contrary to

section 172.1(1)(

b) of the Criminal Code. The person with whom he was communicatingwas, in fact, a police officer posing as a fourteen year old girl. He was sentenced to twelve months imprisonment and one year onprobation. The Crown seeks leave to appeal and, if granted, appeals against the sentence. Mr. Mills cross-appeals against hisconviction. The appeal and cross-appeal both engage questions as to the undercover use of electronic communications by the police.

BACKGROUND [2] On February 28, 2012, Constable Hobbs created a Hotmail account for a fictitious fourteen year old girl, “Leann”, together witha Facebook page and profile containing background information including that she was a high school student. He attached a picture thathe had obtained on the internet. The officer did not make any “friend” requests. On March 20, 2012, he received a Facebook messagefrom Mr. Mills. There was an exchange of emails over approximately two months, during which Mr. Mills stated that he was twenty-three years of age, though, in fact, he was thirty-two.

A meeting at a park was arranged for May 22, 2012, at which time Mr. Mills wasarrested. [3] The trial judge explained the manner in which Mr. Mills’ emails were retained by the officer ((2014), 359 Nfld. & P.E.I.R. 336):

[6] … In order to ensure that he had captured all the information on the screen, Constable Hobbs employed a program called “Snagit” which allows the computer user to capture and copy the information on the screen. Snagit is a screen shot program that captures video display and audio output. Constable Hobbs employed the Snagit program on each of his communications with Mr.

Mills. [7] The “Snagit” program is a program that is available to the public and commonly used. … … [26] In this case, Constable Hobbs and Constable Follett were able to identify the documents produced by the “Snagit” screen captures and testify that they were accurate. The screen capture itself is more akin to a photo or real evidence than it is to notes. It is not a particularly clean document as it does produce a printed document which includes irrelevant additional items around the border of the page, including photographs and advertisements.

Notwithstanding this, the documents do meet the first three Wigmore criteria. The fourth criteria ( sic ), production of the original document, is fulfilled in the sense that the printed page is the best evidence as it has been identified as accurate by the officer who produced it. I find that the screen captures are admissible and that section 30(10) does not apply. I would note that even if the documents were not admissible pursuant to the Canada Evidence Act , following R. v.

Fliss , supra , the viva voce evidence of Constables Hobbs and Follett on the content of the messages is clearly admissible. [ 4 ] In convicting Mr. Mills under

section 172.1(1) (b), the trial judge concluded: [45] … I do not accept the accused’s explanation as to why he was at the park to meet Leann. The evidence obtained from his computer hard drive coupled with his attendance at the park establishes that he sent the messages to Constable Hobbs. The content of the messages establishes the offences. … I am satisfied that the accused believed the victim’s age was fourteen, consequently a conviction should be entered on count 2 … . [ 5 ] At trial, the judge concluded that Mr. Mills’ right “to be secure against unreasonable search or seizure” under

section 8 of the Canadian Charter of Rights and Freedoms was infringed and that the officer failed to meet requirements under the Criminal Code to obtain authorizations related to the electronic communications. On March 20, 2015, Mr. Mills was sentenced to fourteen months imprisonment, reduced by two months to compensate for the infringement of his Charter rights. Giving reasons, the judge rejected Mr. Mills’ request for a conditional sentence. ISSUES [ 6 ] In addition to leave to appeal against sentence, the appeal and cross-appeal require consideration of (1) the application of

Part VI of the Criminal Code and

section 184.2 in particular, (2) the use of the Snagit computer software program, and

(3) section 8 of the Charter . ANALYSIS Leave to Appeal [ 7 ] Leave to appeal is required because this is an appeal by the Crown as to sentence only ( section 676(1) (

d) of the Criminal Code ). The test to be applied is whether the appeal is frivolous in the sense of having no arguable basis or sufficient merit ( R. v. Blok-Andersen , 2016 NLCA 9 , 376 Nfld. & P.E.I.R. 130 , at paragraph 8 ). [ 8 ] The interaction between

section 8 of the Charter and

Part VI of the Criminal Code , the use of electronic communications by the police, and the effect on the sentence imposed meet the requirement for an arguable basis for this appeal. Accordingly, I would grant leave to appeal. The Appeal and Cross-Appeal [ 9 ] The appeal against sentence is based on the Crown’s submission that the trial judge erred in finding that

Part VI of the Criminal Code was engaged and that Mr. Mills’ rights under

section 8 of the Charter were infringed. The issues relate to the sentence rather than the conviction because the remedy granted was a reduction in sentence. Mr. Mills raises similar issues in his cross-appeal against conviction. Interception of Communications – Application of the Criminal Code [ 10 ] The Crown submits that the trial judge erred in concluding that

Part VI of the Criminal Code , which deals with the “Invasion of Privacy”, applies in these circumstances and that the police officer was required to obtain specified authorizations. Section 184(1) provides: Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. (Emphasis added.) [ 11 ]

Section 184.2 deals with an interception where there is consent, application for judicial authorization, the basis for an authorization, the contents and limitations of an authorization, and the issuance of related warrants. Subsection (1) permits the interception of a communication, but requires judicial authorization: A person may intercept , by means of any electro-magnetic, acoustic, mechanical or other devise, a private communication where either

the originator of the private communication or the person intended by the originator to receive it has consented to the interception and anauthorization has been obtained pursuant to subsection (3). (Emphasis added.) [12] The definition of “Intercept” in

section 183 clarifies the various ways in which an interception may be made. It does not providea dictionary-style definition of the word.

Section 183 states: “Intercept” includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof; [13] That language does not alter the ordinary meaning of an interception which requires the involvement of a third party.

Wherethere is direct communication between two people, the intended recipient cannot be characterized as having “intercepted” acommunication meant for that person. [14] Further, the fact, unknown to the sender, that the recipient is a police officer cannot change the nature of the communication ortransform a receipt by the intended recipient into an interception. Viewed from another perspective, if “Leann” had, in fact, been afourteen year old girl, it could not be said that her receipt of the communications from Mr.

Mills constituted an interception. [15] Electronic communications in the modern world involve a degree of anonymity and easily permit either the sender or recipient ofa message to give misleading or false information. In this case, the recipient purported to be a fourteen year old girl while the senderpurported to be a twenty-three year old male. Neither was true. [16] Sections 184 and 184.2 of the Criminal Code apply only where there is an “intercept”. That criterion was not satisfied on thefacts of this case. It follows that

Part VI of the Code does not apply. The trial judge erred in concluding that authorizations undersection 184.2 were required. Use of “Snagit” Computer Software [17] The Crown further submits that the use of the Snagit computer software does not alter the conclusion that the officer did notintercept Mr. Mills’ communications. The contrary view is the basis for Mr. Mills’ cross-appeal. [18] As explained by the trial judge, the Snagit program did not affect the manner in which Mr. Mills’ communications came into theofficer’s possession. The program is simply a means to retain a record of the communications.

As stated in the Crown’s factum, “Thereis no practical difference between printing a copy of a communication and taking an electronic copy using Snagit.” I agree that making acopy of a received message, either on paper or electronically, could not, on that basis, be characterized as an interception. The trial judgeaccepted the officers’ testimony that they “were able to identify the documents produced by the “Snagit” screen captures and testify thatthey were accurate” (paragraph 3, above).

There is no basis on which to conclude that the judge erred in his analysis of the effect anduse of the Snagit software program. Making a record of a received electronic communication using a software program for that purposedoes not constitute an interception of the communication.

Section 8 of the Charter [19] In finding that Mr. Mills’ rights under

section 8 of the Charter were infringed, the trial judge relied on his conclusion thatauthorizations were required under

section 184.2 of the Criminal Code and that these were not obtained ((2013) 343 Nfld. & P.E.I.R.128, at paragraph 44). As set out above, this constituted an error. It follows that this rationale could not be relied upon to establish aninfringement of

section 8 of the Charter. It is necessary, then, to consider whether there is another basis on which Mr. Mills couldestablish an infringement of

section 8. [20]

Section 8 of the Charter states: Everyone has the right to be secure against unreasonable search or seizure. (Underlining added.) [21] Determining whether a search is unreasonable involves a consideration of whether, in the circumstances, there is a reasonableexpectation of privacy. It is that expectation that triggers the application of

section 8. This fundamental proposition is outlined inHunter v. Southam, (SCC), [1984] 2 S.C.R. 145, where Dickson J., for the Court, wrote that the right guaranteed bysection 8 may be “expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlement to a“reasonable” expectation of privacy”, and that the “guarantee of security from unreasonable search and seizure only protects a reasonableexpectation” (page 159, underlining in original). [22] In R. v.

Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, Cromwell J., for the Court, discussed factors relevant to the analysis undersection 8: [18] The wide variety and number of factors that may be considered in assessing the reasonable expectation of privacy can be groupedunder four main headings for analytical convenience: (1) the subject matter of the alleged search; (2) the claimant’s interest in the subjectmatter; (3) the claimant’s subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacywas objectively reasonable, having regard to the totality of the circumstances: [citations omitted].

However, this is not a purely factualinquiry. The reasonable expectation of privacy standard is normative rather than simply descriptive: Tessling [2004 SCC 67, [2004] 3S.C.R. 432], at para. 42.

Thus, while the analysis is sensitive to the factual context, it is inevitably “laden with value judgments whichare made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequencesof government action for the protection of privacy”: Patrick [2009 SCC 17, [2009] 1 S.C.R. 579], at para. 14 … . [23] In this case, the analysis focuses on the third and fourth headings identified in Spencer; that is, Mr. Mills’ subjective expectation

of privacy in his communications with “Leann” and whether that subjective expectation was objectively reasonable in the circumstances. Mr. Mills was using electronic social media to communicate and share information with a person he did not know and whose identity he could not confirm. On an objective analysis, as the sender of such communications, Mr. Mills must have known that he lost control over any expectation of confidentiality that he appears to have hoped would be exercised by the recipient of the messages.

He took a risk when he voluntarily communicated with someone he did not know, a person he was not in a position to trust. Any subjective expectation of privacy Mr. Mills may have had was not objectively reasonable. In the absence of a reasonable expectation of privacy,

section 8 of the Charter was not engaged. [ 24 ] I hasten to add that the nature of communications between Mr. Mills and “Leann”, which took place using social media such as Facebook, must be distinguished from communications in which there would, in fact, be a reasonable expectation of privacy. For example, privacy could be expected if the recipient of a communication is the sender’s bank. Such a communication is sent for a particular purpose, using a means of communication that is represented to be secure, that clearly engages objectively reasonable privacy interests.

SUMMARY AND DISPOSITION [ 25 ] In

summary, the procedure used by the police, resulting in evidence of criminal conduct by Mr. Mills, did not require authorization under

section 184.2 of the Criminal Code . Nor were Mr. Mills’ rights under

section 8 of the Charter infringed. [ 26 ] Accordingly, I would grant leave to appeal, allow the appeal and dismiss the cross-appeal. The reduction in sentence of two months imprisonment based on the infringement of Mr. Mills’ Charter rights must be set aside. The sentence of fourteen months imprisonment was not otherwise challenged and is affirmed. However, in the circumstances, as requested by the Crown, I would stay service of the additional two months imprisonment. Appeal allowed. Cross-appeal dismissed.