By Paul Russell, AdvocateDaily.com Contributor
Even though the Supreme Court of Canada (SCC) ruled against the appeal of a man convicted of internet child luring after corresponding with an undercover officer he thought was a 14-year-old girl, police forces should not automatically assume that all future clandestine online operations will withstand judicial scrutiny, says Toronto criminal lawyer Melanie Webb.
“I think there is still room for arguments on privacy issues because there was a wide difference in reasoning between three camps in the seven-member panel that ultimately reached the same result in this decision,” says Webb, principal of Melanie J. Webb Barrister.
Police created fake Facebook and Hotmail accounts for 14-year-old “Leann” during their investigation, court documents show. A 32-year-old man sent her several messages and emails, some of them explicit, and eventually asked Leann to meet him in a public park, where he was arrested and charged with child luring.
During his trial, the man argued that police breached his Charter right to privacy because they didn’t have prior judicial permission to set up these accounts and to take screenshots of all his online communications with Leann.
“The court rejected the argument that the communications should be excluded, but it reached that decision via different paths,” Webb tells AdvocateDaily.com.
According to the judgment, two judges concurred with Justice Russell Brown in stating, “This Court has recognized that children are especially vulnerable to sexual crimes; that the Internet allows for greater opportunities to sexually exploit children; and that enhancing protection to children from becoming victims of sexual offences is vital in a free and democratic society. This leads me to conclude that, on the normative standard of expectations of privacy described by this Court, adults cannot reasonably expect privacy online with children they do not know.”
Because the accused was communicating with a stranger who he believed to be a child, and the police knew there was no real child and therefore no pre-existing relationship, Webb says that Brown found the relationship between the accused and Leann not worthy of s. 8 protection.
“I prefer Justice Sheilah Martin’s views on privacy rights, though unfortunately, she stands alone,” Webb says.
According to court documents, Martin states that Brown’s reasoning “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 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.’”
Despite finding the man’s s. 8 Charter-protected privacy rights were violated, Martin decided the accused’s conversations with Leann should be admitted as evidence, and so she voted against the appeal of the guilty verdict, the decision notes.
“I have engaged in this same type of argument in the past concerning the same kind of offence and so I was disappointed by the ruling, but somewhat heartened to know that there was at least one judge who got it right, at least in terms of finding the s. 8 breach,” says Webb.
She is also pleased to read in the decision that future cases similar to this one will be judged on their particular circumstances.
“The court is not saying undercover online operations will never engage s. 8 of the Charter and intrude on a reasonable expectation of privacy,” Webb says. “What they said was that in the circumstances of this case, the investigative technique utilized did not breach s. 8.”
The judgment notes that two of the justices voted to dismiss the appeal in an opinion authored by Justice Andromache Karakatsanis because, “The investigatory technique of engaging in conversation, even where the officer is undercover, does not diminish an individual’s reasonable expectation of privacy … because [the accused] had no reasonable expectation that his messages would be kept private from the intended recipient, s. 8 is not engaged.”
Webb, who was not involved in the matter and comments generally, interprets that to mean, “It's not reasonable for a person to expect from the intended recipient that messages will be kept private,” noting that Facebook and email programs generate their own permanent records of conversation.
Justice Michael Moldaver agreed with the opinions of justices Brown and Karakatsanis.
Webb advises anyone concerned about privacy rights to review this decision, especially Martin’s views.
“People absolutely expect privacy in their online communications, which is why we have private chat rooms, passwords, and encrypted messages,” she says.
“But, regardless of the risk, which always exists, that someone might forward or disseminate their communications elsewhere, the point is that, as Justice Martin explains, 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,” Webb adds.
When police are required to have prior judicial authorization for undercover online investigations, the public can be assured their work is going to be regulated and officers are bound by rules, spelling out what they can and cannot do, she says.
“While this decision was a bit disappointing, it doesn't completely gut privacy rights, so we will have to see how police interpret this decision and conduct their operations in the future,” Webb says.