Features Case Law Opinion
No privacy interest in messages sent to recipient

In R. v. Mills, 2017 NLCA 12, a police officer created a Hotmail account for a fictitious 14-year-old girl named “Leann”, together with a Facebook page and profile containing background information. This included information that she was a high school student and a photo obtained from the Internet. About three weeks later, the officer received a Facebook message from Mills (a 32-year-old man). Over a period of approximately three months, there was an exchange of emails. The officer used a public and commonly used screen shot program called “Snagit” to capture all the information on his computer screen during each communication with Mills. A meeting at a park was arranged and, when Mills showed up, he was arrested and subsequently charged with communicating via a computer system for the purposes of committing sexual offences.

In Newfoundland and Labrador Provincial Court the police were able to identify the documents produced by the “Snagit” screen captures and testified that they were accurate. The judge, however, went on to conclude that Mills’ s. 8 Charter right to be secure against unreasonable search or seizure was breached because the police failed to meet the requirements under Part VI of the Criminal Code by obtaining authorizations to intercept the electronic communications. In the judge’s view, the police were required to obtain an authorization under s. 184.2 of the Criminal Code. The judge, however, nevertheless admitted the evidence under s. 24(2) and convicted Mills of communicating by means of a computer with a person believed to be under the age of sixteen years for a sexual purpose. He was sentenced to 14 months imprisonment, which was reduced by two months to compensate for the Charter violation. He was also sentenced to one-year probation and ordered to provide a DNA sample.

The Crown appealed Mills, sentence to the Newfoundland and Labrador Court of Appeal submitting that the trial judge erred in finding that Part VI of the Criminal Code applied in this case and therefore the judge improperly found a Charter breach upon which to reduce the sentence. In the Crown’s submission, Part VI deals with the “Invasion of Privacy”, which did not apply in this case.

Part VI Application

Justice Welsh, delivering the Court of Appeal’s opinion, noted that ss. 184 (interception) and 184.2 (interception with consent) under Part VI only apply where there is an “intercept”. But in this case, Welsh concluded there was no intercept. “Where there is direct communication between two people, the intended recipient cannot be characterized as having ‘intercepted’ a communication meant for that person,” she said. “Further, the fact, unknown to the sender, 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. Viewed from another perspective, if ‘Leann’ had, in fact, been a fourteen year old girl, it could not be said that her receipt of the communications from Mr. Mills constituted an interception.”

Since there was no intercept, Part VI of the Criminal Code did not apply and no authorization was required.

Use of “Snagit”

Using the Snagit computer software did not alter the conclusion that the officer did not intercept Mills’ communications. The Snagit program did not affect the manner in which his communications came into the officer’s possession and the program was simply a means to retain a record of the communications. “Making a copy of a received message, either on paper or electronically, could not, on that basis, be characterized as an interception,” Welsh said. “Making a record of a received electronic communication using a software program for that purpose does not constitute an interception of the communication.”

Alternative s. 8 Charter Breaches?

In this case, the Court of Appeal found there was no alternative basis for finding a, s. 8 Charter breach because Mills did not have a reasonable expectation of privacy in the messages he sent to “Leann”:

… 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.

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. [paras. 23-24]

Without a reasonable expectation of privacy, there could be no infringement of s. 8. The Crown’s appeal was allowed; the two-month sentence reduction was set aside and the sentence of 14 months imprisonment was affirmed. However, this additional two months imprisonment was stayed as requested by Crown.

 
Mike Novakowski is Blue Line’s case law columnist. He can be contacted at: caselaw@blueline.ca.