The Supreme Court of Canada has ruled that sexually explicit online messages exchanged with a minor are not private and can be used in undercover police operations without a warrant.
The decision came Thursday in the case of Sean Patrick Mills, a Newfoundland man convicted of internet luring after a police officer posed online as a 14-year-old girl named “Leann.”
The constable created an email account and Facebook page for the fictitious girl in 2012 to see if people online were preying on underage children.
The officer received a Facebook message from Mills, who was 32, leading to an exchange of emails that turned sexual.
Police used a screen-shot program to capture and record copies of the communications, but they did not have a court-approved warrant.
Mills was arrested in a St. John’s park where he had arranged to meet the girl.
Mills argued at trial that police violated his Charter of Rights and Freedoms guarantee against unreasonable search or seizure and that officers should have obtained a warrant for their investigation.
The trial judge said Mills’ rights had been violated, but still allowed the screen captures into evidence and found him guilty. An appeal court ruled the police did not need judicial approval for their operation and upheld the conviction, prompting Mills’ appeal to the Supreme Court.
All seven Supreme Court judges who heard the case concluded Mills should be found guilty. A majority said that adults cannot reasonably expect privacy online with children they do not know.
In reasons adopted by the majority, Justice Russell Brown wrote that in most cases police are unlikely to know in advance of any potential privacy breach for example, whether the child is truly a stranger to the adult.
“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.”
Justice Sheilah Martin, however, said police should have obtained a court’s permission for the operation.
She argued the nature of the relationship an adult communicating online with a child they do not know was irrelevant to weighing privacy rights.
“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.”
Brown was careful to note the particular circumstances of the case and stressed that the court was not suggesting police could simply monitor communications in the hope of stumbling upon a conversation that reveals criminality.
“With respect, the alias-based sting operation employed here is not some first step to a dystopian world of mass unregulated surveillance.”