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SUPREME COURT OF CANADA

CITATION: R. v. Mills, 2019 SCC 22 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.

NOTE: This document is subject to editorial revision before its reproduction in final

form in the Canada Supreme Court Reports.

R. v. MILLS

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.

Undercover police 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

for M 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 state

absent prior judicial authorization. The police officer’s use of the screen capture

software constituted an “interception” within the meaning of Part VI of the Criminal

Code. Because he did not obtain prior judicial authorization, the search was

unreasonable. However, the application to exclude the evidence pursuant to s. 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 and

reliable 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 the

administration 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 and

children and youth are particularly vulnerable on the internet. State actors must be

equipped with investigative powers that will allow them to root out sexual

exploitation 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 be recognized as beyond

state intrusion absent constitutional justification if Canadian society is to remain a

free, democratic and open society. In a free and democratic society, 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, [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 to contend with a documented record of

their words. This effectively strips freedom of thought and expression of any

meaning. In response to Duarte, Parliament enacted s. 184.2 of the Criminal Code

which requires prior judicial authorization for electronic state participant surveillance.

In Duarte, documentation of private communications occurred via state recording

technology. Now, individuals communicate using electronic media, such that their

conversations are inherently recorded, 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 mean that the state should no longer be required to seek

authorization to access electronic recordings of private communications. Otherwise,

there would be no meaningful residuum 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 that

attracted a reasonable expectation of privacy in Duarte. This duality should support,

not undermine the protection of privacy rights, because a recording exists and the

state has unrestricted and unregulated access to it. Contemporary electronic

communications are analogous to electronic recordings because they possess the

characteristics 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 be analogized to

oral conversations nor does it destroy any reasonable expectation of privacy. Creating

written, electronic records of one’s private communications is a virtual 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 apply

when 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 the concept of

the right to choose one’s listeners. An individual retains the reasonable expectation

that the state will only permanently record a private communication with judicial

authorization. Further, there are quantitative and qualitative distinctions between

in-person and electronic state surveillance that make the analogy between the

“conversations” in Duarte and today’s electronic communications untenable.

Quantitatively, in-person conversations with undercover police officers are not

capable of subjecting the public to surreptitious electronic surveillance on a mass

scale due to the practical resource constraints of undercover police work whereas

electronic surveillance technologies make possible mass surveillance as never before.

Qualitatively, the ability to fabricate alternative identities has never been more

possible and on-line anonymity allows for a different order of state surveillance using

believable, false identities. Finally, state action that intrudes on a reasonable

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 a record simply by

engaging in the conversation undermines the purpose of privacy rights and upsets the

careful balance between the ability of the state to investigate crime 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 puts

courts in the business of evaluating personal relationships with a view to deciding

which deserve Charter protection under s. 8, and which do not. Judicial

disapprobation 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 state is

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 a

sting 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 could and

should obtain judicial authorization to surveil private, electronic communications.

The risk that one’s co-conversant may disclose a private communication does not

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, the analysis

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 is not

reasonable to assume that communications between adults and children who do not

know each other will be criminal in nature. Content neutrality was developed to

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 therefore do 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 protection to

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 informational

content 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 right

balance 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 state

investigative technique employed here constituted an “interception”. In

communicating with M over a medium that inherently produces an electronic

recording, the police officer “acquired” a record of the communication. If electronic

police surveillance of private communications is only regulated by Part VI to the

extent that extraneous recording software is employed, it is no longer sufficiently

comprehensive. To be constitutionally compliant, state acquisition in real-time of

private electronic communications requires regulation.

Cases Cited

By Brown J.

Distinguished: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v.

Wong, [1990] 3 S.C.R. 36; R. v. Duarte, [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 SCC 67, [2004] 3 S.C.R. 432; R. v. Edwards, [1996] 1

S.C.R. 128; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Dyment, [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; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; R. v.

Budreo (2000), 46 O.R. 481; R. v. TELUS Communications Co., 2013 SCC 16,

[2013] 2 S.C.R. 3.

By Karakatsanis J.

Considered: R. v. Duarte, [1990] 1 S.C.R. 30; referred to: Hunter v.

Southam Inc., [1984] 2 S.C.R. 145; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621;

R. v. Wong, [1990] 3 S.C.R. 36; R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3; R. v.

Evans, [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, [1981] 1 S.C.R. 640; R. v. Mack,

[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, [1990] 1 S.C.R. 30; R. v. Marakah, 2017 SCC

59, [2017] 2 S.C.R. 608; referred to: Hunter v. Southam Inc., [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) 320; R. v. Wong, [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, [1992] 1 S.C.R. 527; R. v. Vu, 2013 SCC 60, [2013] 3

S.C.R. 657; Rothman v. The Queen, [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., 2008 SCC 19, [2008] 1 S.C.R. 569; R. v. Fearon, 2014 SCC 77, [2014] 3

S.C.R. 621; R. v. Belnavis, [1997] 3 S.C.R. 341; R. v. Dyment, [1988] 2 S.C.R. 417;

R. v. Collins, [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), [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, [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

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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).

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Behavior” in David Gray and Stephen E. Henderson, eds., The Cambridge

Handbook of Surveillance Law. Cambridge: Cambridge University Press, 2017.

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comparative case study” (2017), 6:2 Internet Policy Review 22 (online:

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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 or seizure of the

appellant Sean Patrick Mills’ online communications under s. 8 of the Canadian

Charter of Rights and Freedoms; and, (2) whether police intercepted a 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 child lurers. Over two

months, Mills sent 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 with luring a child via the Internet.

The entire operation occurred without prior judicial authorization.

[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. 8 Charter right to

be free from unreasonable search and seizure was infringed, applied for the exclusion

of the evidence. The trial judge, while finding that judicial authorization was required

from the point at which the police had determined that Mills had a “potentially

inappropriate interest” in a minor, nonetheless admitted the evidence and convicted

Mills on one of the counts. The Newfoundland and Labrador Court of Appeal upheld

his conviction, but found that Mills’ expectation of privacy 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, he could 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 did not

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 her high 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 her several 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 of the Criminal

Code. At trial, he argued that the police, which operated the sting entirely without

judicial authorization, ought to have obtained authorization under s. 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 were party to those

communications, their interception was subject to the requirements of s. 184.2

(“Interception with consent”). While Facebook and Hotmail automatically generated

a record of the communications, the use of Snagit generated an additional seizure.

And, because Mills was using a username and a password, 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 not eliminated.

[9] The judge therefore found that s. 8 of the Charter was breached. Judicial

authorization was required from the point that Cst. Hobbs became aware 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 evidence would 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 in concluding 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) by which 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 any expectation of confidentiality

[and] took a risk when he voluntarily communicated with someone he did not know”.

In the result, his expectation of privacy was not objectively 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 subjectively held,

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, [1996] 1 S.C.R. 128, at para. 45; Hunter v. Southam Inc.,

[1984] 2 S.C.R. 145, at pp. 159-60. I say “putative search”, since there is no “search

and seizure” within the meaning of s. 8 if the claimant cannot demonstrate a

reasonable expectation of privacy: R. v. Dyment, [1988] 2 S.C.R. 417, at p. 426; see

also S. Penney, V. Rondinelli and J. Stribopoulos, Criminal Procedure in Canada (2d

ed. 2018), at pp. 151-52; H. Stewart, “Normative Foundations for Reasonable

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 that examining

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 the application

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 the subject 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 this subjective expectation of

privacy was objectively reasonable, having regard to the totality of the circumstances:

Cole, at para. 40; Marakah, at para. 11; Spencer, at para. 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 legally significant

distinction between these media of communication and the text message exchanges

on cellphones which this Court considered in Marakah. Each can be accessed 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. This tends 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 alleged search:

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 online communications, 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 be private.

[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 a

Facebook 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. Hobbs had

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, at

p. 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’d say 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 assessment of 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 ought to expect

privacy, given the applicable considerations. This appeal involves a particular set of

circumstances — the police created one of the communicants and controlled her

every move — and two considerations become decisive: the nature of the

investigative technique used by police, and the nature of the relationship between the

communicants. Specifically, here, the investigative technique did not significantly

reduce the sphere of privacy enjoyed by Canadians because the technique 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 these circumstances, 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 an informational

privacy interest. As this Court held in Spencer, informational privacy includes at least

three conceptually distinct although overlapping understandings of privacy: as

secrecy, as control, and as anonymity: para. 38. Mills is asserting a “privacy as

control” interest in the content of his communications, which represents 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 child who 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 the purposes 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. 63 and 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, and without taking any reasonable steps to ascertain the

identity of the recipient, to ensure his own anonymity, or to ensure any

confidentiality with respect to the information 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 (Q.L.) (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, at para. 2); and that enhancing protection 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),

46 O.R. 481 (C.A.)). This leads me to conclude that, on the normative standard of

expectations of privacy described by this Court (Tessling, at para. 42), adults cannot

reasonably expect privacy online with children they do not know. That the

communication 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 the relationship

between the conversants — for example, whether the child truly is a stranger to the

adult. We must also bear in mind that most relationships between adults 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 know from 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 relationship and 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 state

surveillance, 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 advance of 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 his or 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 not

viewed 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 para. 28:

“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 that person”

(emphasis added). While, therefore, the patient had relinquished physical control over

the sample, he was able — by reason of the privacy interest imbued in 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 — the relationship between

Mills and “Leann” is not one of them, if expectations of privacy are to reflect a

normative (rather than a purely descriptive) standard. The conclusion 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 the time of the alleged search.

[27] As to the second consideration — the nature of the investigative

technique used — what renders Mills’ expectation of privacy objectively

unreasonable is that, in creating the fictitious child, police knew from the outset that

the relationship between Mills and his interlocutor was similarly fictitious, and that

“Leann” was truly a stranger to him. The police could, therefore, confidently and

accurately conclude that no s. 8 concern would arise from their reviewing these

particular communications, because the necessary information about the nature of the

relationship between the accused and the “child” was already known from 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, [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 relationship between 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 true nature of the relationship

could have been definitively known. In contrast, police knew from the outset the

nature of the relationship between these conversants. This also distinguishes this case

from the impersonation-through-informer technique employed in R. v. Duarte, [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 my colleague

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 view to deciding

which among them deserve Charter protection under s. 8, and which do not”

(para. 110) and “effectively sanctio[n] the unjustified state intrusion into swaths of all

individuals’ private lives in the hopes of capturing some illegal communications”

(para. 131). With respect, the alias-based sting operation employed here 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 can simply 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 is that Mills

cannot establish an objectively reasonable expectation of privacy in these particular

circumstances, 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.

[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 the particular form

of unauthorized surveillance in question would see the amount of privacy and

freedom remaining to citizens diminished to a compass inconsistent with 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 privacy in 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 whether Part 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 receive it 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 originator to 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 intercepted by any person other

than the person intended by the originator to receive it, and includes any

radio-based telephone communication that is treated electronically or

otherwise 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 is no 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

KARAKATSANIS J. —

[36] I agree with my colleague Brown J. on the outcome of this appeal.

However, I reach this conclusion for different reasons. In my view, when undercover

police officers communicate in writing with individuals, there is no “search or

seizure” within the meaning of s. 8 of the Canadian Charter 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 the intended 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 accused or 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 of the 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 communicated with 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 acceptable balance, in a free

and democratic society, between sometimes conflicting interests in the privacy

necessary for personal dignity and autonomy and the need for a secure and safe

society: see Hunter v. Southam Inc., [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 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. This case implicates both of these consequences. It

requires us to consider what, if any, judicial pre-authorization is necessary when a

common police investigative technique — an undercover operation — is conducted

electronically to “identify and apprehend predatory adults who, generally for illicit

sexual purposes, troll the Internet 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 Facebook messenger and

email.

[41] Not every investigatory technique used by the police constitutes a search

or seizure for constitutional purposes — s. 8 may be engaged only where the

investigatory conduct intrudes upon a person’s reasonable expectation of privacy: R.

v. Evans, [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 deciding whether 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 the privacy 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 undercover investigation. This is

because an individual cannot reasonably expect their words to be kept private from

the person with whom they are communicating. Section 8 does not apply because the

investigatory technique of engaging in conversation, even where the officer is

undercover, does not diminish an individual’s reasonable expectation of privacy. Both

R. v. Duarte, [1990] 1 S.C.R. 30, and R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535,

involved conversations between 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 a private communication does” (emphasis added). In her concurring reasons in

Fliss, at para. 12, Arbour J. echoed this point, holding that “a conversation with an

informer, 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 to obtain judicial

pre-authorization before beginning an undercover investigation. This Court has

acknowledged that police may employ creativity and subterfuge in their work of

preventing and investigating crime, although the police conduct must not threaten the

integrity of the criminal justice system: see R. v. Oickle, 2000 SCC 38, [2000] 2

S.C.R. 3, at paras. 65-67, citing Rothman v. The Queen, [1981] 1 S.C.R. 640, at p.

697 (per Lamer J. (as he then was), concurring); R. v. Mack, [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 was talking to

someone who was an undercover officer. However, this is no different from someone

who unwittingly speaks to an undercover officer in person. Fliss makes 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 if they 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) to receive his messages. It would not

be reasonable for him to expect otherwise. Because he had no reasonable expectation

that his messages would be kept private from 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 before engaging 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 make surreptitious audio

and video recordings of oral conversations. This prospect was troubling because the

police transformed an ephemeral oral conversation into a permanent record without

the knowledge of the person who was speaking. The issue was whether the state’s

newfound technological ability to “listen in” on conversations should require judicial

pre-authorization. And with respect to the prospect of surreptitious audio and video

recordings of our everyday lives, the Court concluded 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 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. Duarte did not deal with a written record

created by an individual communicating with an undercover officer. As such, it does

not require the police to obtain a warrant before using modern communication

methods such as text messages or emails during undercover investigations.

[49] My colleague Martin J. raises the spectre of “surreptitious electronic

surveillance on a mass scale”: para. 103. However, the investigatory technique in this

case involved a one-on-one conversation between an undercover officer and the

accused. This Court has held that generally, police attempts to obtain written,

electronic conversations are subject to s. 8. Police are required to obtain a warrant

before accessing text message conversations stored by telecommunications 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 heard by 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 by their 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 the possibility 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 is not

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) the police

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 police simply

communicate with an individual.

[52] The alternative conclusion would significantly and negatively impact

police undercover operations, including those conducted electronically: see S. 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 mistake has 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

MOLDAVER J. —

[66] 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 and interests.

[69] The sexual exploitation of a minor is an abhorrent act that Canadian

society, including this Court, strongly denounces. In an online context, adults who

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 their homes 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 will allow

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: see Part VI of the Criminal Code,

“Invasion of Privacy”. However, the relevant provisions in Part VI were enacted

before the widespread use of modern means of electronic communications, 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 whether that state

surveillance should be regulated. In my respectful view, protecting children from

online sexual exploitation, while essential, does not require the unregulated state

surveillance of the public’s private electronic communications. For the reasons that

follow, I conclude that members of society have a reasonable expectation 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 those communications, 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 sting operation

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 fictitious 14 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 his investigatory 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 local high 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 and accepted “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 (“Decision Re s. 8”).

[75] On March 20, 2012, Cst. Hobbs received a Facebook message from Mr.

Mills. Over the next two months, Mr. Mills exchanged several Facebook 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 four counts of luring a child

under s. 172.1 of the Criminal 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 the police failed

to comply with s. 184.2 of the Code by not obtaining authorization prior to

intercepting private communications; and second, that the state action constituted 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 reasonable expectation 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 it unnecessary to

consider the question.

[78] Respectfully, I depart from these conclusions. Mr. Mills had a reasonable

expectation of privacy in the impugned communications, and the state’s surveillance

of those private communications therefore constituted a search. Further, the police

use of “Snagit” screenshot software was regulated by s. 184.2 of the Code: Cst.

Hobbs intercepted private communications when he used “Snagit” to record his

communications with Mr. Mills in real-time. As such, he was required 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, even if Cst. Hobbs had chosen

not to employ extraneous screen recording software, his investigative technique may

still have constituted an “interception” for the purposes 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., [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 privacy claim 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) 320, 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, [1990] 1 S.C.R. 30.

A. The Case of Duarte Is the Starting Point

[82] As early as thirty years ago, this Court held that surreptitious participant

electronic surveillance by the state requires regulation: Duarte, and its companion

case, R. v. Wong, [1990] 3 S.C.R. 36. In Duarte, a group conversation about a cocaine

transaction was surreptitiously recorded with the consent of two of the parties to the

conversation – an informer and an undercover police officer. When a participant in a

conversation either surreptitiously records that conversation or consents to the

conversation being surreptitiously recorded, it is called “participant surveillance”. At

the time, s. 178.11(2)(a) of the Code permitted parties to a conversation to conduct

electronic participant surveillance without a warrant. On the strength of a normative

privacy analysis, La Forest J. 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 principle applies 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 a communication

transforms the originator’s ephemeral words into documentary evidence. The act of

recording, therefore, “annihilates the very important right . . . to choose the range of

our auditors” (p. 51).This concern was expressed by Harlan J., dissenting in United

States v. White, 401 U.S. (1971), at pp. 787-89 and referenced 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 foremost statements 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 (at p. 44, emphasis

added); and

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 (at p. 48, emphasis

added).

[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 electronic

state surveillance unchecked would be to relinquish our freedom: the “freedom not to

be compelled to share our confidences with others is the very hallmark of a free

society”: p. 53.

[85] In response to Duarte, Parliament regulated participant electronic state

surveillance: R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 8. What is now

s. 184.2 of the Code provides that where the state seeks to “intercept” a “private

communication”, the state must obtain prior judicial authorization, even when one

party to that communication has consented to its interception.

B. Duarte for the Digital Age

[86] This appeal “is Duarte for the digital age”: A.F., at para. 69. In Duarte,

state access to documentation of our private communications occurred via state

recording technology. Now, however, individuals often communicate using electronic

media, such that their conversations are inherently recorded. Where the intrusive

technology used to be in the hands of the state, it is now in our back pockets.

[87] As La Forest J. clarified in Wong, the principles in Duarte must not be

restricted to the particular technology at issue in that decision. Rather, Duarte was

concerned with “all existing means by which the agencies of the state can

electronically intrude on the privacy of the individual, and any means which

technology places at the disposal of law enforcement authorities in the future”: Wong,

at pp. 43-44. The electronic intrusion that lay at the heart of Duarte was the breach of

the right to choose the range of our listeners, and the concomitant reality of having to

contend with a documented record of our private thoughts in the hands of the state.

Duarte framed this danger as the state recording and transmitting our words, but this

privacy breach can present itself in many forms.

[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?

[90] In my view, the answer is no. This Court must identify the privacy

interest that Duarte and subsequent cases sought to protect and ensure that it remains

protected as the communication environment evolves. This privacy interest is the

right to be secure against surreptitious state access to records of our private thoughts

with no judicial supervision. In order to safeguard this privacy interest, Duarte

concluded that state access to electronic recordings of private communications

requires regulation. A shift in communication methods should not mean that the state

should no longer be required to seek authorization prior to surreptitiously acquiring

written records of our private communications. If it were otherwise, “there would be

no meaningful residuum to our right to live our lives free from surveillance”: Duarte,

at p. 44.

C. It Is Objectively Reasonable to Expect That the State Will Not Acquire Records of Private Conversations at its Sole Discretion

[91] Unregulated state access to electronic private communications engages s.

8 of the Charter because contemporary electronic communications are analogous to

the surreptitious electronic recordings that attracted a reasonable expectation of

privacy in Duarte. While electronic communications possess the characteristics of

informality and immediacy that define oral conversations, they also possess the

characteristics of permanence, evidentiary reliability, and transmissibility that define

electronic recordings. They are a form of the “documented record” (Duarte, at p. 54,

referring to White, at pp. 787-89) to which the state seeks access. Thus for the

“freedom not to be compelled to share our confidences” (Duarte, at p. 53) to retain

any meaning, state access to electronic recordings of our private communications

requires regulation. It was, therefore, objectively reasonable for Mr. Mills to expect

not to be subjected to warrantless state acquisition of permanent electronic recordings

of his private communications. The state action in this case constituted a search

within the meaning of s. 8 of the Charter.

[92] In Duarte, La Forest J. distinguished between two different orders of

state activity: “[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 a private communication does”: p. 57; see also R. v. Fliss, 2002 SCC 16,

[2002] 1 S.C.R. 535, at para. 12. In her reasons, my colleague Karakatsanis J.

analogizes Mr. Mills’ messages with “Leann” to Duarte’s “conversation with an

informer”: at paras. 42 and 48. In Karakatsanis J.’s view, the messages exchanged

between Mr. Mills and Cst. Hobbs were analogous to an oral conversation, and s. 8 of

the Charter was not engaged.

[93] With respect, I am of the view that when one grounds the distinction

between a “conversation” and a “recording” within a discussion of the privacy

interest that Duarte sought to protect, it becomes apparent that the electronic

communications in the case at bar constituted both the conversation and the

surreptitious electronic recording of that conversation. This duality should support,

not undermine the protection of privacy rights, because a recording exists and the

state has unrestricted and unregulated access to it.

[94] This Court has already opined on the hybrid nature of text messaging. In

TELUS, Abella J. stated that “text messaging bears several hallmarks of traditional

voice communication: it is intended to be conversational, transmission is generally

instantaneous, and there is an expectation of privacy in the communication”: para. 1.

Later in her judgment, Abella J. noted a distinction between text messaging and oral

communication: “unlike voice communications, text communications, by their nature,

generate a record of the communication which may easily be copied and stored”:

para. 34. Thus text messaging is “an electronic conversation”: TELUS, at para. 5.

While electronic communications can possess the immediacy and spontaneity of a

“simple conversation”, they also inherently generate a permanent 1 written record of

the communication itself. In his concurring reasons in Marakah, Rowe J. reached a

similar conclusion: digital communication both “creates a record that is beyond our

control” and, at the same time, possesses a “conversational quality” that makes it

“akin to a digital conversation”: paras. 86-87. If Duarte’s dichotomy was concerned

with documentation, this means that electronic communications occupy both sides of

the ledger. They are both the oral conversation and the electronic recording of that

conversation.

(1) The Significance of Creating the Recording Ourselves

1 While all electronic communications generate a written record of a conversation, not all electronic

communications generate a permanent written record, e.g. “Snapchat”. Nonetheless, the general

nature of electronic communication remains and must be addressed: “technical differences inherent

in new technology should not determine the scope of protection afforded to private

communications”: TELUS, at para. 5.

[95] There is no doubt that, as Karakatsanis J. states, “Email and Facebook

messenger users are not only aware that a permanent written record of their

communication exists, they actually create the record themselves”: para. 48. That

conversants are aware that their communications are being recorded, and that they

knowingly create the record themselves, does not mean that modern electronic

communications must be analogized to the “oral conversation” in Duarte or destroy

any reasonable expectation of privacy in those communications.

[96] In drawing a distinction between oral communication and recording,

La Forest J. cited Holmes v. Burr, 486 F.2d 55 (1973), at p. 72: ‘“Few of us would

ever speak freely if we knew that all our words were being captured by machines for

later release before an unknown and potentially hostile audience. No one talks to a

recorder as he talks to a person”’: Duarte, at p. 50. Adapting Duarte to our digital

age, it remains the case that no one speaks to a recorder as they would speak to a

person. Yet people now “speak to recorders” each time they send an electronic

message. Does this mean that it is no longer objectively reasonable to expect that our

conversations will remain private, simply because they are now (much of the time)

recorded? This Court has held in the negative. Creating written, electronic records of

one’s private communications is a virtual prerequisite to participation in society, and

yet “Canadians are not required to become digital recluses in order to maintain some

semblance of privacy in their lives”: Jones, at para. 45. Despite the capacity of

modern technology to record electronic communications, individuals still retain both

subjective and objective expectations of privacy in those communications: TELUS, at

para. 32; transcript, at p. 59.

[97] Further, awareness that one’s conversation is documented does not

necessarily negate the objective reasonableness of the expectation that the state will

not access that documentation. The standard is normative, not descriptive. As the

Honourable Renee M. Pomerance wrote in “Flirting with Frankenstein: The Battle

Between Privacy and Our Technological Monsters” (2016), 20 Can. Crim. L. Rev.

149, at p. 159:

Citizens may be willing to give up civil liberties if they believe that it will

make them safer. They may be resigned [to a lack of] privacy for the sake

of convenience. They may be resigned to a lack of privacy, having been

conditioned to believe that we are already living in a surveillance society.

No one of those attitudes should singlehandedly shape our legal

approach. Rights and freedoms should not be shaped by fear or fatalism.

[98] In Duarte, the danger inherent in the state’s ability to create electronic

recordings of our words at any moment and with no justification at all was that it

would lead to a society in which we expected this to be the case. In La Forest J.’s

view, a society in which we risk unregulated electronic surveillance “every time we

ope[n] our mouths” (Duarte, at p. 44) is one that no longer has any sense of freedom:

Duarte; R. v. Wise, [1992] 1 S.C.R. 527, at p. 565, per La Forest J. The intervener

Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic discussed

“the damage to free expression that would flow from imputing an assumption that

one’s interlocutor may be an undercover state agent making records of the electronic

conversation” (I.F., at p. 9) by referencing this passage by Alan Westin, who was

writing about the early development of computers (Privacy and Freedom (1967), at

p. 349):

The danger to privacy and to . . . liberties in this development was that

individuals who knew that all this information was being collected and

stored and lay readily available in machines would never be able to know

when it would be used “against them” and for what purposes. This public

awareness of potential use would lead to an “increase in behaviour ‘for

the record’” and less freedom of action and expression. People will be

concerned not only with the fact that they are going “on record,” but also

with how that record will “look” to those in authority who examine it.

The whole purpose of privacy . . . is to allow for unguarded, experimental

“release” behavior of individuals, and this outlet is just what our dossier-

computer system is threatening.

Harlan J. expressed this same sentiment as follows: “[a]uthority is hardly required to

support the proposition that words would be measured a good deal more carefully and

communication inhibited if one suspected his conversations were being transmitted

and transcribed”: White, at pp. 787-89, referenced in Duarte, at p. 54.

[99] Fifty years on from White, authority is beginning to emerge, and it is

corroborating Harlan J.’s views. A number of empirical studies have confirmed the

“chilling effect” of government surveillance on online behaviour. These studies

suggest that state electronic surveillance leads individuals to self-censor their online

expression: J. W. Penney, “Internet surveillance, regulation, and chilling effects

online: a comparative case study” (2017), 6:2 Internet Policy Review 22 (online);

A. Marthews and C. Tucker, “The Impact of Online Surveillance on Behavior” in

D. Gray and S. E. Henderson, eds., The Cambridge Handbook of Surveillance Law

(2017) 437.

[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. For this reason, Duarte

decided that if the state wished to acquire documentation of the private thoughts of its

citizens, it would require prior judicial authorization.

(2) “Intended Recipient”

[101] Karakatsanis J. states that “it is not reasonable to expect that your

messages will be kept private from the intended recipient”: at para. 36. That general

proposition does not and cannot apply when the state has secretly set itself up as the

intended recipient. It is clear from Duarte that in the case of state participant

surveillance, the notion of “intended recipient” — as well as the characterization of

“the person or persons to whom we direct our remarks” (Karakatsanis J.’s reasons, at

para. 50, citing Duarte, p. 47) — is infused with the concept of the right to choose the

range of one’s listeners. While in Duarte the “intended recipients” of the conversation

were the undercover police officer and the informer, Mr. Duarte retained a reasonable

expectation of privacy in the contents of that conversation because the police use of

recording technology violated his right not to have to contend with a documented

record in the hands of the state. Analogously, an individual engaged in a private,

electronic conversation retains the reasonable expectation that the state will only have

access to a permanent electronic recording of that private communication if the state

agent has sought judicial authorization. Normative expectations have not changed.

The difference, of course, is that we now use technology that makes the recording

itself.

[102] I note that this appeal concerns electronic communications and their

conscriptive capacity to inherently generate a record of what will often be

spontaneous, informal communication. It does not concern the privacy interests in a

note, a letter, or other written forms of communication that will turn on their own

qualities: Karakatsanis J.’s reasons, at para. 45; Marakah, at para. 86, per Rowe J.; R.

v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 24.

(3) Quantitative and Qualitative Distinctions Between In-Person and Electronic State Surveillance

[103] Two additional comments on the nature of electronic surveillance are in

order. First, the “conversations” contemplated by this Court in Duarte do not afford a

direct comparison to electronic communications today because the in-person

conversations with undercover police officers at issue in Duarte were not capable of

subjecting the public to surreptitious electronic surveillance on a mass scale.

[104] In a free and democratic society, individuals do not expect a significant

number of the people with whom they interact to be undercover police officers

surveilling them at the officers’ “whim”: Duarte, at pp. 44 and 49. While such a

scenario is inconceivable in in-person undercover operations due to the practical

resource constraints of undercover police work, it is perfectly conceivable when it

comes to electronic surveillance technologies: “surveillance has emerged as the

dominant organizing practice of late modernity, and is used in different technological

guises to monitor and govern assorted categories of people (citizens, motorists,

workers, students, consumers, international travelers, military adversaries, welfare

recipients, and various other groupings)”: K. D. Haggerty, “Methodology as a Knife

Fight: The Process, Politics and Paradox of Evaluating Surveillance” (2009), 17

Critical Crim. 277, at pp. 277-78; see also D. Lyon, Surveillance After Snowden

(2015), at p. 47: “the cables and conduits of the internet . . . make possible mass

surveillance as never before”.

[105] In part, this is a question of resources. While an in-person undercover

operation will usually occur at a 1:1 ratio (one police officer gaining the confidence

of one target), online surveillance may cover much more ground. A single police

officer can conduct many electronic conversations at once. Thus the number of

electronic conversations that undercover police officers could be conducting with

members of the public at any given time is likely to be greater than the number of

conversations that the same police officers could conduct in person.

[106] The analogy between an oral conversation and an electronic

communication is not only untenable because of the quantitative increase in

surveillance capacity when it moves online; there is also a qualitative distinction

between electronic surreptitious surveillance and in-person surveillance. Cst. Hobbs

could not have been conducting this police work in person. The ability to fabricate

alternative identities has never been more possible than it is now. Of course, this

aspect of electronic communication makes it all the more necessary to police online

spaces for criminal activity that thrives on such anonymity. Yet this same anonymity

allows for a different order of state surveillance in which police officers can more

easily create a richly textured, and therefore more believable, false identity through

which to conduct surveillance. Left to conduct electronic surveillance at their sole

discretion — because “when undercover police officers communicate in writing with

individuals, there is no ‘search or seizure’” (Karakatsanis J.’ reasons, at para. 36) —

the police “could impersonate an internet therapy provider to learn of a person’s

addictions or an online dating service to discover an individual’s sexual preferences

— all for weeks or months on end”: I.F., Criminal Lawyers’ Association, at para. 4.

Where, as here, the police can pose as a child and gain the trust of other children —

or where, for instance, the police can impersonate an internet therapy provider or

online dating service through intricately fabricated false identities — the nature of

surveillance has changed. Our privacy protections must keep pace.

[107] In her reasons, Karakatsanis J. states that “rogue police undercover

investigations” should be appropriately characterized as a threat to the integrity of the

justice system itself: para. 62. She looks to mechanisms such as abuse of process and

the entrapment doctrine to redress these types of police tactics: paras. 62-63. I agree

that police action that “offends our basic values” (Rothman v. The Queen, [1981]

1 S.C.R. 640, at p. 689, per Lamer J.) can and should be addressed in a number of

ways; this is for the good. However, when that state action also intrudes on a

reasonable expectation of privacy, it is intended to be addressed, inter alia, via s. 8 of

the Charter. What is at issue in this appeal is not only the actions of one officer, but

also the general rule that should govern how the state may gain access to private

communications using current technologies. In my view, placing communications

outside s. 8 because the state recipient can now obtain a record of the conversation

simply by engaging in it, undermines the purpose of privacy rights and upsets the

careful balance between the ability of the state to investigate crime and the rights of

individuals to private areas of expression.

[108] Duarte was concerned about the privacy implications of the state

acquiring permanent, electronic recordings of private communications at its sole

discretion. Electronic communications are conversations that occur on platforms that

inherently have the capacity to generate permanent electronic recordings. If the state

wishes to acquire the documentation of those communications, it requires

authorization.

D. The Question of Relationship

[109] My colleague Brown J. decides this appeal on the basis that there is no

reasonable expectation of privacy where the state conducts a sting operation and

knows from the outset that an adult accused is communicating with a child that he or

she does not know: paras. 22-3. While Brown J. ties his conclusion to the sting

context, his reasoning would apply whenever its “crucial” factors are present: that the

accused “was communicating with someone he believed to be a child, who was a

stranger to him”: para. 22 (emphasis deleted).

[110] With respect, I do not accept that this new category of “relationship” is

needed to limit when there is a reasonable expectation of privacy. Indeed, this

concept of “relationship” is built upon two ideas that have already been rejected by

this Court. First, the concept of “relationship” is really a proxy for “control” and is

based in risk analysis reasoning that this Court has rejected. Second, “relationship” is

also used to target illegal activity, and is not therefore content neutral. Over and

above these conflicts with s. 8 jurisprudence, at the heart of this reasoning is the

normative position that a relationship between an adult and a child who is a stranger

is not a relationship worthy of s. 8’s protection: Brown J.’s reasons, at para. 26. This

position seeks to put courts in the business of evaluating the Canadian public’s

personal relationships with a view to deciding which among them deserve Charter

protection under s. 8, and which do not. The concern here is not only that this has

never been done before — it is that, as a matter of principle in the s. 8 context, it

should not be done at all. Judicial (dis)approbation of an accused’s lifestyle has no

place in the s. 8 privacy analysis.

[111] 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. The Charter expressly grants s. 8 protections

to “everyone”. Members of society have a reasonable expectation that their private,

electronic communications will not be acquired by the state at its sole discretion.

[112] Finally, a finding of reasonable expectation of privacy in a particular

thing or area does not mean that the state is forbidden from conducting a search — it

simply means that the police action must be supported by a power or authorization

that respects s. 8 of the Charter. In my view, the scenario presented of a sting context

in which the state pretends to be a child and communicates with those seeking to

sexualize children is precisely the type of circumstance in which the state could and

should obtain judicial authorization to surveil private, electronic communications.

(1) Relationship as a Proxy for Control

[113] My colleague Brown J. states that it is not reasonable for an adult to

expect privacy when communicating with a vulnerable child who is a stranger

because hoping that a complete stranger will keep one’s communications private is a

“gamble” that cannot ground an objectively reasonable expectation of privacy: see

Brown J.’s reasons, at paras. 22-23. In other words, Mr. Mills did not have a

reasonable expectation of privacy from warrantless, surreptitious state electronic

surveillance because he did not have sufficient control over what his co-conversant

would do with his communications.

[114] With respect, this position reintroduces the “loss of control due to risk of

disclosure” analysis that this Court recently rejected in Marakah. A reasonable

expectation of privacy analysis concerns state intrusion. The risk that one’s co-

conversant may disclose a private communication does not affect the reasonableness

of the expectation that the state, in the absence of such disclosure, will not intrude

upon that private communication. For this reason, the theory of loss of control due to

risk of disclosure is a type of risk analysis that this Court has repeatedly said should

not form part of the s. 8 analysis: Duarte, at p. 44; Wong, at pp. 45-46; Wise, at pp.

563-64, per La Forest J., dissenting but not on this point; R. v. Gomboc, 2010 SCC

55, [2010] 3 S.C.R. 211, at para. 34, per Deschamps J., concurring; Cole, at para. 58;

Marakah, at para. 45; Reeves, at para. 50; see also Ward, at para. 77; R. v. Craig, 2016

BCCA 154, 335 C.C.C. (3d) 28, at para. 108.

[115] This Court’s rejection of risk analysis has never hinged on the nature of

the relationship between the parties. In Marakah, for instance, the majority did not

analyze the relationship between Mr. Winchester and Mr. Marakah. This is because it

was not relevant to the question of whether Mr. Marakah had a reasonable

expectation that the state would not access his text messages from a recipient’s device

without a warrant. Thus Marakah’s rejection of risk analysis, at para. 40, was a

statement of general principle applicable to all reasonable expectation of privacy

assessments of electronic communications, including the assessment to be undertaken

in the case at bar:

The Crown argues that Mr. Marakah lost all control over the electronic

conversation with Mr. Winchester because Mr. Winchester could have

disclosed it to third parties. However, the risk that recipients can disclose

the text messages they receive does not change the analysis: Duarte, at

pp. 44 and 51; Cole, at para. 58. To accept the risk that a co-

conversationalist could disclose an electronic conversation is not to

accept the risk of a different order that the state will intrude upon an

electronic conversation absent such disclosure. “[T]he regulation of elec-

tronic 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”: Duarte, at p. 44. Therefore, the risk that a

recipient could disclose an electronic conversation does not negate a

reasonable expectation of privacy in an electronic conversation.

[Underlining added.]

[116] The focus of a reasonable expectation of privacy analysis is not on

whether the party to whom one has communicated is likely to go to the police —

“[n]o set of laws could immunize us from that risk”: Duarte, at p. 44. Rather, the

focus is on whether, absent such disclosure, it is reasonable to expect that the police

will not intrude on those communications without a warrant or some other form of

authorization.

(2) Relationship as a Means of Targeting Illegality

[117] My colleague Brown J. concludes that because this Court has pronounced

on the vulnerability of children, the capacity of the internet to facilitate sexual crimes

against children, and the need to protect children from sexual exploitation, it follows

that “adults cannot reasonably expect privacy online with children they do not know”:

para. 23. With the greatest of respect, I cannot read this conclusion as anything other

than the targeting of illegal activity and the denial of privacy rights to individuals

who, it may be believed, are most likely to engage in that type of illegal activity. The

centrality of the sting context in my colleague’s analysis only highlights this further: a

sting operation — by definition — targets illegal activity. As such, the conclusion

that “adults cannot reasonably expect privacy online with children they do not know”

is contrary to the core principle of content neutrality at the heart of this Court’s s. 8

jurisprudence.

[118] Under s. 8, the fact that an individual may be engaged in criminal

behaviour online does not affect the reasonable expectation of privacy analysis. This

Court has consistently said that “[t]he nature of the privacy interest does not depend

on whether, in the particular case, privacy shelters legal or illegal activity. The

analysis 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”: Spencer, at

para. 36; Hunter, at p. 160; Wong, at pp. 49-50; R. v. A.M., 2008 SCC 19, [2008] 1

S.C.R. 569, at para. 72; Patrick, at para. 32; Marakah, at para. 48. For this reason, a

reasonable expectation of privacy analysis must be framed in “broad and neutral

terms”: Wong, at p. 50.

[119] Before this Court, the Crown acknowledges that the majority in Marakah

held that a reasonable expectation of privacy analysis must be content neutral.

However, the Crown urges this Court to depart from its content neutral approach in

all cases of electronic communications “that constitute a crime against the recipient”:

R.F., at para. 56.

[120] By stating that “adults cannot reasonably expect privacy online with

children they do not know,” Brown J. is effectively granting the Crown’s request to

find a “limited exception” (R.F., at para. 50) to this Court’s content neutral analysis.

With respect, there is no reason to depart from well-established principle and recent

precedent in this case. This is not the first time that the Court has been called upon to

develop privacy law in the context of digital and/or internet-based sexual crimes

involving minors: see e.g. Cole, Spencer, and Reeves. This Court did not see fit to

displace its content neutral analysis in those cases, and it is no more appropriate to do

so here.

[121] The standard reasoning underpinning the importance of a content neutral

analysis is that justifying a search based on the illegal content discovered during that

search undermines the system of prior judicial authorization meant to prevent

unjustified searches before they occur: see Hunter, at p. 160. Brown J. seeks to allay

that concern by targeting only those individuals who, according to my colleague,

deserve to be searched because their relationships are not ones that our society would

wish to shield from state scrutiny — in this case, adults who communicate online

with children they do not know.

[122] This approach assumes that communications between adults and children

who do not know each other will be criminal in nature. In reality, this is not an

inevitability. The broad category of “relationships between adults and children who

are unknown to them” encompasses informal, vitally-important educational

relationships that can arise in online spaces. This wide net is therefore overbroad and

would capture an array of non-criminal communications: for example, professionals

who communicate with youth to provide career advice, or adults who may be able to

offer support to youth struggling with addiction, sexual identity or bullying because

they have had similar life experiences. An adult sharing their own experiences, in the

course of a private, electronic communication between strangers could make all the

difference in a young person’s life. If there is no reasonable expectation of privacy in

such communications because an adult is in contact with an unknown child, then the

state is permitted to listen in and record without the need for any regulation,

authorization or limits. Content neutrality was developed to ensure that such

unjustified state intrusions into privacy would not occur.

[123] In my view, and following Binnie J. in A.M., the position that “adults

cannot reasonably expect privacy online with children they do not know” shifts the

analysis from a “reasonable” expectation of privacy to a “legitimate” expectation of

privacy. The view that some relationships are a priori criminal and therefore do not

legitimately attract an expectation of privacy both assumes criminality where there

may be none, and assumes that there can be no reasonable privacy interests in illegal

communications. Both of these assumptions are incorrect: A.M., at paras. 69-73.

[124] Finally, as I discuss in further detail later in these reasons, the police in

the case at bar engaged in unregulated online surveillance of an unknown number of

youth who believed they were speaking to someone their own age. The facts of this

case, therefore, do not illustrate the scenario that my colleague envisions — a

scenario in which only criminals are denied privacy protection.

[125] Remember that the issue is not whether a child who has been victimized

can go to the police with an online communication received by that child. Rather, the

issue is whether the state can pretend to be a child in private online communications

at its sole discretion and absent any regulation. In my view, it should not be free to do

so.

(3) Courts Should Not Be in the Business of Determining Which Personal Relationships Fall Within Section 8

[126] Beyond my concerns about content neutrality, I would also caution that

the normative position that “adults cannot reasonably expect privacy online with

children they do not know” asks courts to engage in an unnecessary and unprincipled

valuation of personal relationships when this factor is irrelevant to the s. 8 inquiry.

Further, even if assessing personal relationships to determine which of them deserve

to be protected from warrantless state scrutiny did accord with the s. 8 inquiry, courts

are ill-equipped to conduct this assessment. Casting suspicion on an entire category of

human relationship not only stigmatizes that relationship — it exposes meaningful

and socially valuable communication to unregulated state electronic surveillance. For

all of these reasons, in my view, courts should not use s. 8 to allow the state into

certain personal relationships which are seen as unworthy of Charter protection.

[127] I say this understanding that as the majority of this Court stated in

Patrick, “[p]rivacy analysis is laden with value judgments which are made from the

independent perspective of the reasonable and informed person who is concerned

about the long-term consequences of government action for the protection of

privacy”: para. 14. Yet the necessity of conducting “value judgments” does not permit

courts to engage in a free-wheeling evaluation of accused persons and their

relationships. Rather, the Charter has tasked courts with making value judgments that

relate to the objects of the s. 8 inquiry itself. These objects are “the privacy of the area

or thing being searched and the potential impact of the search on the person being

searched”: Patrick, at para. 32. On this basis, this Court has assessed whether

members of society can expect privacy in their backpacks in school (A.M); in their

text message communications, be that in a search incident to arrest (R. v. Fearon,

2014 SCC 77, [2014] 3 S.C.R. 621) or on a recipient’s device (Marakah); in

computers in their own home (Vu; Reeves); in a car that they do not own (R. v.

Belnavis, [1997] 3 S.C.R. 341); and in the relative distribution of heat over the

surface of their home (Tessling).

[128] The s. 8 inquiry is not, and never has been, focused on whether a

relationship between two non-state actors is worthy of constitutional protection. For

example, R. v. Dyment, [1988] 2 S.C.R. 417, did not concern relationships. The

privacy invasion in Dyment was “the use of a person’s body without his consent to

obtain information about him”: pp. 431-32.

[129] Nor is the value of a personal relationship an appropriate object or aspect

of a s. 8 inquiry. Parliament has expressly extended s. 8 protection to “everyone”:

“Everyone has the right to be secure against unreasonable search or seizure.”

Respectfully, it is not the role of the courts to evaluate personal relationships with a

view to denying s. 8 Charter protection to certain classes of people. Rather, as

stewards of the Charter, courts “provide what is often the only effective shelter for

individuals and unpopular minorities from the shifting winds of public passion”’: R.

v. Collins, [1987] 1 S.C.R. 265, at p. 282, citing D. Gibson, The Law of the Charter:

General Principles (1986), at p. 246.

[130] Moreover, carving out privacy-free zones for particular relationships will

expose socially meaningful communications to unregulated state surveillance. As

detailed above, there are many communications that would be captured in the

category of “adults who communicate with children who are unknown to them” that

are worthy of s. 8’s protection.

[131] For all of these reasons, a new turn in our s. 8 jurisprudence that looks to

the personal relationships between parties as a dispositive means of denying or

granting privacy rights conflicts with the purpose of s. 8. It effectively sanctions the

unjustified state intrusion into swaths of all individuals’ private lives in the hopes of

capturing some illegal communications. This runs counter to this country’s decision

that private communications are to remain private, unless the state has authorization

to search them.

(4) Conclusion on the Question of Relationship

[132] This Court has consistently rejected the risk analysis approach, and

instead conducts content neutral s. 8 analyses by examining the state conduct at issue.

The question to be answered when conducting a reasonable expectation of privacy

analysis in the case at bar is not whether adults who communicate online with

underage strangers during alias-based sting operations have a reasonable expectation

of privacy in their private, electronic communications. Rather, it is whether members

of society have a reasonable expectation that their private, electronic communications

will not be acquired by the state at its sole discretion: see Patrick, at para. 32.

E. Conclusion on Reasonable Expectation of Privacy

[133] In a free and democratic society, it is reasonable for members of society

to expect that the state will only access electronic recordings of their private

communications if it has sought authorization to do so. This includes participant

surveillance of one’s private communications. It may be difficult for some to accept

that this reasonable expectation of privacy extends to Mr. Mills as well, but extend it

does: “[t]he question is not which risks the claimant has taken, but which risks should

be imposed on him in a free and democratic society”: Reeves, at para. 41; Duarte, at

p. 52; Spencer, at para. 36; Patrick, at para. 32; Wise, at p. 567. The police

surveillance in question constituted a search within the meaning of s. 8 of the

Charter.

V. Part VI Authorization

[134] I agree with the appellant that “the use of ‘Snagit’ to capture the messages

fits within the definition of ‘intercept’ in s. 183 of the Code as this program recorded

and acquired the substance of the texts”: A.F., at para. 48; see also Decision Re s. 8,

at para. 34. I further explore whether Cst. Hobbs’ actions may also have constituted

an interception even in the absence of “Snagit”. This latter discussion raises the issue

of whether our statutory scheme authorizing the interception of private

communications requires reconsideration in light of shifts in communication

technology. I leave this reconsideration to Parliament’s good judgment.

A. Did Mr. Mills Have a Reasonable Expectation of Privacy in His Communications?

[135] For s. 184.2 to apply to a particular investigative technique, the state must

be seeking to intercept a “private communication”. A “private communication” is

“any oral communication, or any telecommunication . . . that is made under

circumstances in which it is reasonable for the originator to expect that it will not be

intercepted by any person other than the person intended by the originator to receive

it”: Code, s. 183. Built into this definition is the requirement that the originator had a

reasonable expectation of privacy in their communication. For the reasons outlined

above, Mr. Mills had a reasonable expectation of privacy in his communications. The

impugned communications therefore constitute “private communication” under s. 183

of the Code.

B. Did the Use of “Snagit” Constitute an Interception?

[136] Section 184.2 of the Code applies to communications that have been

“intercepted” by means of any electro-magnetic, acoustic, mechanical or other device.

To “intercept” means to “listen to, record or acquire a communication or acquire the

substance, meaning or purport thereof”: Code, s. 183. With respect for the opposing

view, I conclude that the use of “Snagit” in this case constituted an interception.

[137] Cst. Hobbs recorded the conversations that he had with Mr. Mills using a

computer program “which allows the computer user to capture and copy the

information on the screen”: Decision Re s. 8, at para. 6. When asked why he used this

computer program, Cst. Hobbs replied, “[f]or continuity purposes to keep them all

together for the sake of reproduction for the courts if need be”: A.R., vol. II, at p. 7.

He stated that he did not at any point print the messages directly from their original

programs, but rather “would always save them by doing a screen capture”: p. 8. Cst.

Hobbs further explained: “every person may have their own way of doing things.

That’s just my personal preference which I found has always been more beneficial. I

just find it keeps everything in the same location. I can store it all on my computer in

the same file folder”: p. 8. On the plain meaning of “record”, Cst. Hobbs recorded

the informational content of the private communications when he “save[d] them by

doing a screen capture” into a centralized location on his computer “for the sake of

reproduction for the courts” (pp. 7-8). This constituted an interception: see also R. v.

Kwok, [2008] O.J. No. 2414 (QL)(C.J.).

[138] The interception in this case occurred in “real-time”: Jones, at para. 69.

This Court’s analysis of the meaning of “intercept” in Jones clarified that an

“interception suggests a prospective concept of authorization relating to

communications not yet in existence. The word ‘intercept’ denotes an interference

between the sender and recipient in the course of the communication process”: Jones,

at para. 69; see also TELUS, at para. 37. Thus Part VI is a regulatory scheme intended

to authorize the real-time interception of future communications. I agree with the

appellant that, for this reason as well, Part VI applies to the state action here: A.F., at

para. 59. Cst. Hobbs received the communications and contemporaneously recorded

them using screen capture software. This was far from the historical text messages at

issue in Jones. Had Cst. Hobbs sought authorization to conduct these real-time

interceptions, he would have been seeking authorization to intercept communications

that were not yet in existence. The state action in this case thus conforms to this

Court’s interpretation of “interception” in Jones.

[139] I further note that, contrary to what the Court of Appeal held (at para. 13)

and what some other appellate courts and commentators appear to have decided as

well (2017 NCLA 12; see also R. c. Blais, 2017 QCCA 1774, at paras. 16-17

(CanLII), R. v. Beairsto, 2018 ABCA 118, 349 C.C.C. (3d) 376, at para. 25), an

“interception” does not require a third party. This Court’s reference to third-party

involvement in Jones (at para. 72) does not apply to cases of participant surveillance

or to the parameters of s. 184.2 of the Code. Parliament enacted what is now s. 184.2

in response to Duarte. Duarte was a case of participant surveillance — the

undercover officer and informer in that case were participants in the conversation.

The “interception” in Duarte occurred not because a third party intercepted the

communication, but because state recording equipment did. The trial judge correctly

conducted this analysis: Decision Re s. 8, at paras. 17 and 23.

[140] Finally, concluding that the state action in this case was an “interception”

accords with the “undergirding purpose” of Part VI: Jones, at para. 59; Rizzo & Rizzo

Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21. Part VI is aimed at the use of

intrusive technologies to surveil private communications: Jones, at para. 73; Duarte,

at pp. 43-44. In employing screen capture software, Cst. Hobbs used technology to

surveil — record and acquire in real time — Mr. Mills’ private communication and,

in so doing, violated Mr. Mills’ right to choose the range of his listeners: Duarte, at p.

51.

C. Surreptitious Electronic Communication by the State With Members of the Public in a Private Setting May Constitute an Interception

[141] In our current communications environment, we are wiretapping

ourselves. We knowingly deliver documentary evidence of our private

communications into the hands of not only our intended recipients, but also into the

digital repositories of corporate third parties. Yet this does not negate the right to be

protected against state intrusion on our privacy. As the statutory scheme with which

we regulate state privacy intrusion, Part VI must engage with and accommodate these

complexities. This includes the constituent components of Part VI, such as the

definition of “intercept”: “The issue then is how to define ‘intercept’ in Part VI. The

interpretation should be informed not only by the purposes of Part VI, but also by the

rights enshrined in s. 8 of the Charter, which in turn must remain aligned with

technological developments”: TELUS, at para. 33.

[142] The statutory definition of “intercept” is to “listen to, record or acquire a

communication or acquire the substance, meaning or purport thereof.” In

communicating with Mr. Mills over a medium that inherently produces an electronic

recording, 2 Cst. Hobbs “acquired” a record of the communication. It is true that,

leaving the issue of “Snagit” aside, Cst. Hobbs simply availed himself of the

technology that Mr. Mills was already using. Yet just as Duarte was not aimed solely

at the recording of the conversation but also at the state’s acquisition of a record, s.

184.2 is not only aimed at intrusive technologies that interfere in private

communications (Jones, at para. 69); it is also aimed at the capacity of intrusive

technologies to access our private communications: “Part VI recognizes the dangers

inherent in permitting access to the future private communications of a potentially

unlimited number of people over a lengthy period of time”: TELUS, at para. 42.

Members of the public must be protected from unregulated, surreptitious state

collection of their private electronic communications. It may therefore be the case

2 It must be noted, however, that in this case the inherent documentary evidence produced by virtue of

communicating over Facebook and Hotmail was not the evidence adduced at trial. Cst. Hobbs’ only

copy of the messages were those that he had acquired via “Snagit”. He had deactivated “Leann’s”

Facebook account when Mr. Mills was charged with the offences now before this Court. As for the

record of conversations on Mr. Mills’ end, the search of Mr. Mills’ hard drive pulled up only

fragments of the communications, the evidentiary weight of which depended on checking the

fragments against the integral copy captured by “Snagit”. The only reproducible form of the

communications came from the screen captures.

that the surveillance of Mr. Mills’ online private communication, with or without

screen capture technology, constituted the type of clandestine state surveillance using

intrusive technology that Part VI was intended to proscribe.

[143] If, in the alternative, surreptitious, electronic police surveillance of

private communications is only regulated by Part VI to the extent that extraneous

recording software is employed, then our “comprehensive scheme…for the

interception of private communications” (TELUS, at para. 2) is no longer sufficiently

comprehensive. To be constitutionally compliant, state acquisition in real-time of

private electronic communications requires regulation.

D. Part VI Strikes the Right Balance Between Law Enforcement’s Need to Investigate Crime and the Right of an Individual in a Democratic Society to be

Left Alone

[144] I agree with the intervenor the Attorney General of Ontario that the

internet has created “an unprecedented platform for child exploitation” and that

undercover proactive police investigations are necessary to combat the online

exploitation of children: I.F., at pp. 7-9; see also G. J. Fitch, Q.C., “Child Luring” in

Substantive Criminal Law, Advocacy and the Administration of Justice, vol. 1,

presented to the National Criminal Law Program (2007), at pp. 1 and 3. Part VI of the

Code was developed with these considerations in mind. In my view, its application to

the use of “Snagit” in the case at bar strikes the right balance between law

enforcement’s need to investigate crime and the right of an individual in a democratic

society to be left alone. Where the police wish to conduct surreptitious electronic

surveillance by means of intrusive technology, their investigative methods must be

authorized by the judiciary or some other independent third party.

[145] I am not persuaded by the argument that internet predators move so

quickly from victim to victim that it would be “unconscionable” to pause an

investigation for the amount of time that it would take to secure judicial authorization

(I.F., Canadian Association of Chiefs of Police, at pp. 6-8). Our judicial system is

equipped to issue authorizations in a timely fashion. Police officers secure warrants

on short timelines every day in this country. Here, the words of La Forest J. in

Duarte, at pp. 52-53, are apt:

. . . the imposition of a warrant requirement would have the sole effect of

ensuring that police restrict “participant monitoring” to cases where they

can show probable cause for a warrant. It is unclear to me how

compelling the police to restrict this practice to instances where they have

convinced a detached judicial officer of its necessity would hamper the

police’s ability effectively to combat crime. But even if this were so, this

restriction would be justified by the knowledge that the police would no

longer have the right ‘to train these powerful eavesdropping devices on

you, me, and other law-abiding citizens as well as the criminal element’,

to cite the observation of Cirillo J. in Commonwealth v. Schaeffer, [536

A.2d 354 (Penn. 1987)], at p. 367.

Or, as Karakatsanis J. succinctly states in Reeves, at para. 54: “I recognize that

rejecting the Crown’s approach may interfere with criminal investigations. But

Charter rights often do.”

[146] I acknowledge, however, that the implications of concluding that the

police “intercepted” the communication even absent the use of “Snagit” are more

complex. The question as to what standard of reasonableness would be required for

prior judicial authorization of varied forms of proactive police investigations is one

best left to Parliament. On this point, I take care to restate that my position does not

and should not inexorably lead to the police being unable to investigate child lurers.

Rather, it focuses on the authorization of those investigations by an independent third

party. A less exacting regime than Part VI may be appropriate in certain

circumstances.

[147] Finally, on the subject of “proactive police investigations” such as

occurred in the case at bar, I would suggest that these investigations would benefit

from a standardized set of privacy protective guidelines. According to Cst. Hobbs,

there were no guidelines or policies available to assist him in setting up a minimally

intrusive false identity. As a result, he created policy on his own, with undesirable

consequences. To construct his online persona, Cst. Hobbs used photographs from the

internet of a youth who was unknown to him. That youth was, therefore, unwittingly

conscripted into a police investigation. Further, “[t]here were a number of what has

been described by various authors as ‘low visibility’ encounters with [Cst. Hobbs] by

innocent members of the public. The officer used their [online] presence on his

Facebook page to provide credibility to his profile while at the same time they shared

information with him unaware that he was a police officer”: (2014), 346 Nfld. &

P.E.I.R. 102, at para. 10 (“Decision re Section 24(2)”). Cst. Hobbs did not seek or

obtain the informed consent of the individuals that he added on Facebook, individuals

who were effectively used “as part of the ‘bait’ to trap an Internet predator”: (2015),

364 Nfld. & P.E.I.R. 237, at para. 18 (“Sentencing Decision”). There was also no

evidence as to how or whether the police retained the personal information of any of

these individuals: Sentencing Decision, at para. 18. Proactive online investigations

can cast a wide net of electronic surveillance, resulting in innocent members of the

public, many of whom may be youth, unwittingly sharing sensitive personal

information with the police. To ensure that such investigative techniques are

minimally invasive, they must be subject to clear guidelines.

VI. Did the Search Breach Section 8 of the Charter?

[148] A search or seizure is presumptively unreasonable in the absence of prior

judicial authorization. However, the Crown may establish, on a balance of

probabilities, that the police conduct was reasonable in that it was authorized by law,

the law was reasonable, and the manner in which the search was carried out was

reasonable: Collins, at p. 278. Here, there was no prior judicial authorization and as

such, the search is presumptively unreasonable. The search or seizure was not

authorized by any law. Therefore, the search of the communications breached s. 8 of

the Charter.

VII. Should the Evidence be Excluded Under Section 24(2) of the Charter?

[149] Having found that Mr. Mills’ s. 8 Charter rights were breached, the trial

judge nevertheless denied Mr. Mills’ application to exclude the evidence of the

electronic communications pursuant to s. 24(2). Though my reasoning differs in

several important respects, I agree with the trial judge that the admission of the

evidence would not bring the administration of justice into disrepute.

[150] Mr. Mills argues that the trial judge ought to have approached this matter

from the viewpoint that this was a violation of the right against self-incrimination. If

this was Mr. Mills’ position at the time that the application to exclude was heard, then

I agree that the trial judge should have addressed it. However, even if this was an

error, it had no effect on the outcome of the decision. In his sentencing decision, the

judge found that this was not a case of entrapment: paras. 3-8. Thus, if he had

canvassed this issue in his s. 24(2) analysis, the trial judge would have concluded that

the evidence was not obtained contrary to the right against self-incrimination.

[151] The remainder of Mr. Mills’ submissions concern the treatment and

weighing of the factors for exclusion of evidence under s. 24(2) as articulated in R. v.

Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71. These factors are: “(1) the

seriousness of the Charter-infringing state conduct . . . (2) the impact of the breach on

the Charter-protected interests of the accused . . . and (3) society’s interest in the

adjudication of the case on its merits”.

[152] Mr. Mills submits that the trial judge erred in finding that the undercover

officer acted in good faith. However, this was a reasonable conclusion open to the

trial judge, who found that the police officer was “following what he believed to be a

legitimate investigative technique”: Decision re Section 24(2), at para. 10. It is

concerning that the officer did not enquire into whether the investigative technique

was constitutionally valid, or into whether he was required to obtain judicial

authorization: “negligence or wilful blindness cannot be equated with good faith”:

Grant, at para. 75. It is also concerning that there were no written police guidelines

for him to follow. Yet in my view, Cst. Hobbs would be forgiven for assuming the

constitutional validity of this technique. This Court’s decision in R. v. Levigne, 2010

SCC 25, [2010] 2 S.C.R. 3, can be interpreted as validating the investigative

technique used here 3 . The parties in Levigne did not raise the s. 8 Charter issues

inherent in the police investigative tactics employed in that case, and thus this Court’s

silence on the issue in Levigne does not bind it now. Nevertheless, for this reason and

for the reasons identified by the trial judge, the trial judge did not err in finding that

the officer was acting in good faith. This first factor weighs in favour of admission.

[153] With respect to the impact on the accused’s Charter-protected interests,

the trial judge found that there was a reduced expectation of privacy because “The

accused had been communicating with an unknown individual with the knowledge

that his communications would be recorded on that person’s computer”: Decision re

Section 24(2), at para. 11. As such, the trial judge found that this branch of the

inquiry favoured admission of the evidence. Mr. Mills submits that the trial judge’s

findings run counter to the jurisprudence. I agree. There was no “reduced expectation

of privacy” in this case. This Court has made clear that a person’s lack of control over

their communications does not reduce their reasonable expectation of privacy from

3 In Levigne, the investigating officer employed a recording software program called Camtasia to

record his private online chats with the accused. As the officer in that case testified, Camtasia is “a

software program that basically records whatever happens on your screen as a video”: Levigne,

Appellant Record, at p. 113.

state intrusion: see Duarte, at p. 48; Marakah, at para. 68. The Charter breach

substantially impacted Mr. Mills. It revealed private information that was central to

his biographical core, and it exposed that information to police scrutiny: R. v. Plant,

[1993] 3 S.C.R. 281, at p. 293 (a biographical core of information “would include

information which tends to reveal intimate details of the lifestyle and personal choices

of the individual”); Cole, at paras. 45-46. This factor weighs in favour of exclusion.

[154] As for society’s interest in the adjudication of the case on its merits, the

trial judge found that the exclusion of the evidence would be “fatal to the Crown

case”, and that the evidence was “real probative evidence of high reliability”:

Decision re Section 24(2), at para. 12. On appeal to this Court, the appellant

acknowledges that the offence in this case is serious. However, Defence counsel

urges this Court not to place “undue emphasis” on the seriousness of the offence:

A.F., at paras. 103-6.

[155] In my view, the balance of the three factors favours admission of the

evidence. In so concluding, I do not place “undue emphasis” on the seriousness of the

offence. While the impact of the breach on Mr. Mills’ privacy interest was significant

and not diminished, the seriousness of the Charter breach was minimal. I am of the

view that the exclusion of “relevant and reliable 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 the administration of justice into disrepute: Grant, at

para. 81.

[156] The trial judge did not err by declining to exclude the evidence pursuant

to s. 24(2), and I would uphold his determination that the appropriate remedy for the

Charter breach is a two-month reduction in sentence.

VIII. Conclusion

[157] It was objectively reasonable for Mr. Mills to expect that a permanent

electronic recording of his private communications would not be surreptitiously

acquired by an agent of the state absent prior judicial authorization. Cst. Hobbs’ use

of “Snagit” constituted an “interception” within the meaning of Part VI of the Code.

Further, even in the absence of “Snagit”, it may be that the state investigative

technique employed here constituted an “interception”. Because Cst. Hobbs did not

seek and obtain prior judicial authorization pursuant to s. 184.2 prior to using

“Snagit”, the search of the private communications was unreasonable. However, I

would not exclude the communications under s. 24(2) of the Charter.

[158] This appeal raises serious questions as to whether and how police

surveillance of electronic communications should be regulated. Following this

Court’s rich line of case law developing the normative principles of what constitutes a

reasonable expectation of privacy, I conclude that unchecked state surveillance — in

this case, unchecked state acquisition of permanent electronic recordings of private

communications — contravenes s. 8 of the Charter. To the extent that our legislative

scheme authorizing the interception of private communications does not capture the

modern methods by which the state obtains real-time recordings of private

communications, I believe that it requires reconsideration.

[159] For the foregoing reasons, I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Sullivan Breen King Defence, St. John’s;

Spiteri & Ursulak, Ottawa.

Solicitor for the respondent: Department of Justice & Public Safety,

Special Prosecutions Office, St. John’s.

Solicitor for the intervener Director of Public Prosecutions: Public

Prosecution Service of Canada, Toronto.

Solicitor for the intervener Attorney General of Ontario: Crown Law

Office, Criminal, Toronto.

Solicitor for the intervener Director of Criminal and Penal Prosecutions:

Director of Criminal and Penal Prosecutions, Quebec City.

Solicitor for the intervener Attorney General of British Columbia:

Ministry of Attorney General, Criminal Appeals and Special Prosecutions, Victoria.

Solicitor for the intervener Attorney General of Alberta: Justice and

Solicitor General Appeals, Education & Prosecution Policy Branch, Calgary.

Solicitors for the intervener Samuelson-Glushko Canadian Internet

Policy and Public Interest Clinic: Presser Barristers, Toronto; Markson Law

Professional Corporation, Toronto.

Solicitors for the intervener Canadian Civil Liberties Association:

Addario Law Group, Toronto.

Solicitors for the intervener Criminal Lawyers’ Association: Stockwoods,

Toronto; Ruby, Shiller & Enenajor, Toronto.

Solicitor for the intervener Canadian Association of Chiefs of Police:

Royal Newfoundland Constabulary Legal Services Unit, St. John’s.