SELECTED CASE LAW
SUPREME COURT OF CANADA:
In 2019 SCC 22, Mr M was convicted of child luring. He was communicating with person who he thought was a 14-year-old girl but was actually a police officer posing as the girl online. The police officer in this case made a fake email and Facebook account posing as the girl. The officer did not get prior judicial authorization to conduct the investigation. The officer did not make any friend requests using the fake account, but received one from Mr. M, who said he was a 23 years old man, but was actually 32 years old. Mr. M sent several messages, including a photo of his genitals to the girl. He also instructed her to delete the messages and to keep their relationship secret. The officer had used a program called “Snagit” to screen capture a copy of the communication with Mr. M in real-time. Mr. M made arrangements to meet the girl at a park, where he was arrested.
The trial judge found that the police had intercepted a private communication that required prior judicial authorization, which they did not have, and that the use of “Snagit” program was a search or seizure, which violated Mr. M’s Charter rights to be free from unreasonable search or seizure. However, despite the violation, the judge admitted the evidence and convicted Mr. M.
The Court of Appeal found that the use of the “Snagit” program was similar to printing the emails out and held that it should not be considered an interception. It also found that because Mr. M was communicating with someone he did not know, he had no reasonable expectation of privacy. The Court upheld Mr. M’s conviction. His sentence of 14 months’ imprisonment was affirmed. Additional orders included registration on the sex offender list, and a DNA sample order.
The Supreme Court dismissed Mr. M’s appeal in a plurality, affirming Mr. M’s guilt (Brown, Abella and Gascon; Karakatsanis and Wagner; Moldaver; and Martin gave four concurring judgements). The majority found that the investigation did not amount to a search or seizure and that the police had not intercepted a private communication needing prior judicial authorization.
Brown, Abella and Gascon
Supreme Court Justices Brown, Abella and Gascon found that Mr. M’s Charter rights were not engaged when the officer recorded his electronic communications. The majority decision found that although Mr. M had a subjective privacy expectation in the conversation, Mr. M did not have an objectively reasonable expectation of privacy because he was an adult talking to a child who was a stranger to him. Because of the police investigation (i.e. making a fake account of a child), it was clear that the child was a stranger to Mr. M. The Court found that a relationship between an adult and child who are strangers to each other is fundamentally different than other relationships. It noted that relationships where the adult knows the child “are worthy” of protections against unreasonable search and seizure, such as those with “family, friends, processionals, or religious advisors”, but stranger relationships were not.
The majority held that the police did not require prior judicial authorization before recording the communication in this case because they knew that the relationship was between an adult who was a stranger to the child, because the child was not a real child. Mr. M did not have a reasonable expectation of privacy. The Court confirmed his guilt.
Karakatsanis and Wagner
Supreme Court Justices Karakatsanis and Wagner held that when an undercover police officer communicates with an individual in writing there is no search and seizure. They stated that a person cannot expect their communication to be kept private from the person they are talking to, finding it similar to a person conversing with an undercover police officer face to face, where police do not need to get prior judicial authorization. The police were directly involved in the conversation and Mr. M intended to communicate with the person on the other end of the communication.
[…] while the Internet empowers individuals to exchange much socially valuable in-formation, 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.
In response to concerns that the police could impersonate a variety of types of people in police investigations who would be strangers to children, the Justices stated, “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.”
They also held that the screenshots of the written conversation did not engage Mr. M’s Charter rights, because a record of the conversation already existed in email and Facebook. Judicial pre-authorization was not required and Mr. M’s Charter rights were not violated. They would also dismiss the appeal.
Justice Moldaver agreed with the judgements written by Justices Karatsanis and Brown.
Justice Martin came to a different conclusion and decided that Mr. M’s Charter rights were breached. Justice Martin held that it was objectionably reasonable for Mr. M to expect his conversation would not be secretly recorded by the police without prior judicial authorization. She also found that the police’s use of the screen capture software was considered an interception that required authorization.
Justice Martin stated:
The sexual exploitation of a minor is an abhorrent act that Canadian society, includ-ing 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.
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.
Justice Martin stated that online conversations are not like in person conversations, stating: “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.” She held that this was particularly relevant when the state was the recipient of the communication, stating “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.” She stated the just because some relationships between an adult and a child stranger are ones that society would not wish to shield from the scrutiny of the state this should not allow for well-established privacy principles to be set aside. She held that relationships should not be part of the privacy analysis and should not carve out “privacy-free zones”.
Justice Martin stated that these types of investigations should allowed with judicial authorization but should be regulated by Parliament. She also expressed concern over the privacy rights of the child in the image that the police officer used to impersonate a 14 year old girl without that child’s permission.
She found that Mr. M’s Charter rights had been breached. However, Justice Martin would still have admitted the evidence, despite the Charter violation.
Also see:  SCCA No 125 (Leave to appeal); 2017 NLSCA 12 (Appeal);  364 Nfld & PEIR 237 (NLPC) (Sentencing);  359 Nfld & PEIR 336 (NLPC) (Trial);  346 Nfld & PEIR 102 (NLPC) (Evidence ruling);  343 Nfld & PEIR 128 (NLPC) (Charter s 8).
 2019 SCC 22 at para 24.
 2019 SCC 22 at paras 59-60.
 2019 SCC 22 at para 62.
 2019 SCC 22 at paras 69, 73.
 2019 SCC 22 at para 91.
 2019 SCC 22 at para 101.
 2019 SCC 22 at para 130.
Criminal Offence(s): Luring a Child