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Facebook Messages and Reasonable Expectation of Privacy

May 1, 2019

Supreme Court offers mixed reasons for finding no section 8 violations

The Supreme Court of Canada discussed the nature of electronic communications and the ability of the State to make use of those conversations with its decision in R v Mills, though the case provides less in the way of real guidance than it could have.

Mills became the subject of an undercover operation conducted by police to catch child lurers on the internet. An officer posed as a 14-year-old girl, ‘Leann’. Mills used Facebook and Hotmail to send sexually explicit messages to ‘Leann’, ultimately arranging to meet her in a park. The police arrested him at the park. During the course of the undercover operation, the officer posing as ‘Leann’ recorded the conversation by taking screenshots using purpose-built software called “Snagit”. The officer did not have prior judicial authorization to make and keep these screenshots. 

At trial, Mills applied to exclude the screenshots from evidence. The trial judge concluded the screenshots were “private communications” under section 183 of the Code and therefore that prior judicial authorization had been required under section 184.2 of the Code from the point that Mills became the subject of investigation. The trial judge held the screenshots constituted a “seizure of communications” in breach of Mills’ reasonable expectation of privacy in his communications under section 8 of the Charter. However, the trial judge ultimately held that admission would not bring the administration of justice into disrepute, and so Mills was convicted.

On appeal, the conviction was upheld. However, the Court of Appeal found that the trial judge had erred in concluding that the section 184.2 authorizations were required. Instead, they found that Mills’ did not have a reasonable expectation of privacy in the communications and so section 8 was not engaged.

The Supreme Court of Canada dismissed the appeal, but with three different sets of reasons and four decisions. 

Justice Brown (with Justices Abella and Gascon concurring) found that there was no unreasonable search on the basis that there was no search at all, since the accused did not have a reasonable expectation of privacy in his conversation with the undercover officer. This set of reasons pays the least attention, at least explicitly, to the technological aspect of the communication. They concluded that any section 8 claim requires that the accused have a subjectively held and objectively reasonable expectation of privacy in the subject matter of the search, and in the view of this cohort Mills’ subjective expectation of privacy was not objectively reasonable. Specifically, these three judges held that “adults cannot reasonably expect privacy online with children they do not know” (para 23).

Generally whether an expectation of privacy is objectively reasonable has turned on consideration of a number of factual questions, such as whether the person has the ability to regulate access or whether the accused has abandoned the property. There has always been a certain level of discontinuity between the types of factors listed and the question that the objective portion of the analysis is meant to answer, which is whether, on a normative analysis, the privacy interest concerned is one that a person should be entitled to expect in our society. In essence, Justice Brown’s analysis simply goes directly to that normative issue, and concludes that adults cannot reasonably expect privacy online with children they do not know. Society values privacy in the context of many adult-child relationships “including, but in no way limited to, those with family, friends, professionals, or religious advisors” (para 24), but this relationship was not one of those contexts.

The challenge for this conclusion, as Justice Brown’s cohort recognizes, is that on its face it runs contrary to the long-accepted principle that privacy must be assessed on “broad and neutral terms” that do not lead to post facto reasoning: for example in R v Wong, [1990] 3 SCR 36 the privacy question was whether the accused had a privacy interest when they rented a hotel room, not whether they could have a privacy interest in an illegal gaming operation being conducted in a hotel room. Justice Brown therefore stresses that no such post facto reasoning was engaged in the particular facts of this case. The officer who created ‘Leann’ knew that any adult who communicated with ‘her’ would be communicating with a child unknown to them, and so no other sort of communication could result. They argued that on these facts, sanctioning this form of unauthorized surveillance does not impinge citizens’ privacy in a way that is inconsistent with a free and open society in which expectations of privacy are normative. Where the police were aware that ‘Leann’ was fictitious and there was no risk to any genuine adult-child relationship, they could be absolutely certain that no section 8 breach could occur from taking the screenshots, because there was no reasonable expectation of privacy. Where there was no potential for a privacy breach, there was no need for prior judicial authorization, and as such section 184.2 of the Code did not apply.

Justice Karakatsanis J (with Chief Justice Wagner concurring) agreed in the result, and also found that there was no reasonable expectation of privacy in these communications, but for entirely different reasons. She held that 

[39] The right to be secure against unreasonable searches and seizures must keep pace with technological developments to ensure that citizens remain protected 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, [1990] 3 S.C.R. 36, at p. 44. However, as technology evolves, the ways in which crimes are committed — and investigated — also evolve.

Applying those principles to these circumstances, she concluded that no interaction had taken place here which should be considered an interception by the State. Her reasoning rests on an analogy with R v Duarte, [1990] 1 SCR 30. That case dealt with an undercover officer who had a conversation with the accused, and who surreptitiously recorded it: the case found that prior judicial authorization was required even for “consent interceptions” such as that. The argument Justice Karakatsanis makes, however, is that there has never been any suggestion that prior judicial authorization would be required for the undercover officer to have the conversation with the accused: “it is not reasonable to expect that your messages will be kept private from the intended recipient (even if the intended recipient is an undercover officer)” (para 36). On that basis, the accused here had no reasonable expectation of privacy in his conversation with ‘Leann’.

There is a need for judicial pre-authorization when the state chooses to surreptitiously make a permanent electronic record of such a communication: however, Justice Karakatsanis holds, that is not what occurred here. All that had occurred here was the conversation itself, which happened to be a conversation which took place by electronic means: the State was not creating the record:

[48]…Mr. Mills chose to use a written medium to communicate with Constable Hobbs. Email and Facebook messenger users are not only aware 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. 

There was the further issue that in this case the police had used the program “Snagit” to take screenshots of the electronic messages, but Justice Karakatsanis held that this did not change things. Inherently, she held, the communications existed as a written record, and “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” (para 56). She did note, however, that:

[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.

She also added, as a note of caution:

[60]…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.

Justice Moldaver, writing only for himself, agreed with the reasons of both Brown and Karakatsanis JJ. One could see that as making Justice Brown’s decision the majority one, in that four of seven judges ultimately accept his reasoning.

Justice Martin, also writing only for herself, however, disagreed with the reasoning of all the other members of the court, found the accused to have a reasonable expectation of privacy, found that the use of the Snagit software was an interception, and found there to be a section 8 violation. However, as she concluded that the evidence should not be excluded, she agreed in the result. Describing the case as “Duarte for the digital age” she suggested that 

[88] In this case, we have the opportunity to pull the normative principles of Duarte and Wong through this Court’s more recent Charter s. 8 and Code Part VI jurisprudence — in particular, Patrick; 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; Spencer; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696; Reeves. The goal is to arrive at a judicial position that, while firmly grounded in the case law, “keep[s] pace with technological development, and, accordingly, . . . ensure[s] that we are ever protected against unauthorized intrusions upon our privacy by the agents of the state, whatever technical form the means of invasion may take”: Wong, at p. 44.

[89] The risk contemplated in Duarte was that the state could acquire a compelled record of citizens’ private thoughts with no judicial supervision. At the end of the Cold War era, the way to obtain a real-time record of a conversation was to record it. Today, the way to obtain a real-time record of a conversation is simply to engage in that conversation. This Court must assess how and whether the primary concern of documentation in Duarte still applies to cases in which (a) a communication method self-generates documentation of the communication, and (b) the originator of the communication knows that this occurs. Should this shift in communication technology now allow the state to access people’s private online conversations at its sole discretion and thereby threaten our most cherished privacy principles?

Justice Martin rejected Justice Karakatsanis’ view that the Facebook exchange was equivalent to only the conversation itself in Duarte, holding that it was equivalent to both the conversation and the electronic recording of it, and argued that “[t]his duality should support, not undermine the protection of privacy rights” (para 93). Similarly she held that the issue of whether the State surreptitiously created the record or whether it was created as a by-product of the communication was irrelevant to the underlying policy concerns:

[100] The consequences of knowing that, at any point and with reference to any of our statements, we will have to contend with a documented record of those statements in the possession of the state, would be no less than the total “annihilat[ion]” (Duarte, at p. 44) of our sense of privacy.

Justice Martin also disagreed with Justice Brown’s approach of finding no reasonable expectation of privacy in a conversation between an adult and a child not known to them, arguing that “The Court should not create Charter-free zones in certain people’s private, electronic communications on the basis that they might be criminals whose relationships are not socially valuable” (para 111), concluding that that approach was inconsistent with the principle of content-neutrality.

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