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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Legal rights - Protection against unreasonable search and seizure

Thursday, April 18, 2019 @ 1:29 PM  

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Appeal by Mills from a judgment of the Newfoundland and Labrador Court of Appeal affirming his conviction for luring a child via the Internet. A police officer posed online as a 14-year-old girl and Mills sent her several messages, using Facebook and Hotmail. Eventually, he was arrested in a public park where he had arranged a meeting with the “child” and was charged under s. 172.1 of the Criminal Code. The entire operation occurred without prior judicial authorization. Using a screen capture software, the police introduced a record of the emails and messages as evidence at trial. Mills argued that his right to be free from unreasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms (Charter) was infringed and applied for the exclusion of the evidence. The trial judge found that the messages were private communications and that s. 8 of the Charter was breached. However, the trial judge concluded that admitting the evidence would not bring the administration of justice into disrepute under s. 24(2) of the Charter and convicted Mills. The Court of Appeal upheld Mills’ conviction but found that his expectation of privacy was not objectively reasonable and that his s. 8 rights were therefore not infringed. The appeal presented two issues: whether the investigative technique employed amounted to a search or seizure of online communications, and whether police intercepted a private communication pursuant to s. 184.2 of the Criminal Code absent prior judicial authorization.

HELD: Appeal dismissed. There was no legally significant distinction between electronic communications that took place on Facebook “chat” or via email or text message exchanges on cellphones, as all of them could be accessed via many electronic devices connected to the Internet. The objective reasonableness of a claim to privacy was not purely a descriptive question, but rather a normative question. When the police created one of the communicants and controlled her every move, two considerations became decisive: the nature of the investigative technique used by police, and the nature of the relationship between the communicants. On the normative standard of expectations of privacy, adults could not reasonably expect privacy online with children they did not know. That the communication occurred online did not add a layer of privacy, but rather a layer of unpredictability. While many adult-child relationships were worthy of s. 8’s protection, Mills’ was not. Mills could not establish an objectively reasonable expectation of privacy where he conversed with a child online who was a stranger to him and, most importantly, where the police knew this when they created her. Section 184.2 of the Criminal Code therefore was not applicable because there was no “private communication”.

R. v. Mills, [2019] S.C.J. No. 22, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, R. Brown and S.L. Martin JJ., April 18, 2019. Digest No. TLD-April152019011-SCC