R v Mills : The Limits of Privacy in the Internet Age
In the age of the Internet the distinction between public and private information has become blurred. The norms about what types of information are entitled to privacy on the Internet is contested in our everyday lives, public discourse, and even at the Supreme Court of Canada (“SCC”). In R v Mills, 2019 SCC 22 [Mills] the Court considers whether an adult has a reasonable expectation of privacy in their Internet messages to an unknown child. At a time when Internet privacy norms are not yet settled, Mills reflects the difficulty of determining what is private on the Internet.
Mills is a companion decision to R v Morrison, 2019 SCC 15 [Morrison], on section 172.1 of the Criminal Code, RSC 1985, c C-46 [Criminal Code], the child luring provision. The Court’s decision in Morrison has previously been covered by Steph Brown on the Court.ca. While Morrison deals with the constitutionality of section 172.1, Mills is about whether it is a search and seizure within the meaning of section 8 of the Canadian Charter of Rights and Freedoms [Charter] for the police to create fake online identities and receive internet messages from an accused without judicial authorization. The SCC has already determined in R v Marakah, 2017 SCC 59 [Marakah] that individuals may have a reasonable expectation of privacy in their text messages. In Mills the justices struggle to find consensus on why Internet messages would not attract a reasonable expectation of privacy when text messages sometimes do.
The accused was subject to a police sting, in which a police constable created an email account and a Facebook profile to appear as a 14-year-old girl. The Facebook profile had a real hometown, high school, friends the police officer had added, and a profile picture, which the officer had taken from the Internet. A month later, the police received a message from the accused, beginning a two-month long exchange of messages and emails. During this time, the accused sent a sexually explicit photo of himself. The police created screenshots of these messages through an application called Snagit (Mills, paras 5, 74). The accused was subsequently arrested at a park where he had arranged to meet who he thought was the 14-year-old girl, and was charged with child luring, contrary to s.172.1 of the Criminal Code (Mills, para 7).
The central issue for the SCC was whether either the written conversation or the subsequent screenshots taken of the messages constituted an unreasonable search and seizure, contrary to s. 8 of the Charter. For State action to constitute a search within the meaning of section 8 of the Charter the accused must have had a subjectively held and objectively reasonable expectation of privacy in the subject matter of the alleged search (Marakah, paras 10-12). If the State conduct was a search, then it must be authorized by a reasonable law and carried out in a reasonable fashion (Mills, para 148). There is no law which authorizes the type of sting done in this case, so if it was a search, it violated s. 8. The justices also consider whether police officers may alternatively require judicial authorization for this type of sting because it constitutes an intercept of a private communication “by means of any electro-magnetic, acoustic, mechanical or other device” pursuant to s. 184.2 of the Criminal Code.
The court of first instance found that the s. 8 rights of the accused had been infringed by the police. Moreover, judicial authorization was required under s. 184.2 of the Criminal Code at the point in time when the police officer detected that the accused had an inappropriate interest in the fictional 14-year-old. Nevertheless, the evidence was found admissible under s. 24(2) of the Charter (paras 9-10). The Newfoundland and Labrador Court of Appeal (“NLCA”) upheld this decision but found no interception under s. 184.2 of the Criminal Code and no infringement of the accused’s s. 8 rights. The NLCA concluded that the accused had no objectively reasonable expectation of privacy, because he had lost control and confidentiality over his messages once he had sent them to a complete stranger (Mills, para 11).
Four Concurring Opinions at the SCC
Justice Brown’s Opinion
The SCC offered four concurring opinions, all agreeing that the evidence should not be excluded, but each cited different reasons. Justice Brown, with Justices Abella and Gascon concurring, wrote the first opinion. They found that the accused did not have a reasonable expectation of privacy in his messages and that the messages were not private communication within the meaning of s. 184.2 of the Criminal Code.
Justice Brown begins his analysis by determining whether the accused had a subjectively held and objectively reasonable expectation of privacy in his messages. Justice Brown reaches a conclusion by applying the totality of the circumstances test from Marakah (Marakah, paras 10-12). It has four parts. First, the subject matter of the alleged search is determined. Second, the Court considers if the accused has a direct interest in that subject matter. Third, it has to be decided if the accused has a subjective expectation of privacy in that subject matter. Fourth, the Court asks if the accused has an objectively reasonable expectation of privacy in the totality of the circumstances (Mills, para 13).
Justice Brown offers brief reasoning on the first three parts of the test. He finds the subject matter of the alleged search to be the communications which took place over email and Facebook (Mills, paras 14-16). The accused has a direct interest in these communications, because he co-authored them (Mills, para 16). Finally, he had a subjectively reasonable expectation of privacy in these communications. Individuals who send text and electronic messages expect them to remain private. In these particular circumstances, the accused also instructed the reader to delete his messages with some regularity (Mills, paras 17-19).
Typically, the most elaborate and contested part of the test is the objective reasonableness section, and that is exactly what we find in Mills. Whether the expectation of privacy is objectively reasonable is a descriptive and normative question about “when Canadians ought to expect privacy” (Mills, para 20).
Justice Brown thinks there is an inherent difference between the privacy interest someone has in an electronic conversation between adults, and an electronic conversation between an adult and an unknown child. Children are particularly vulnerable to sexual offences, and the Internet provides a greater opportunity for adults to exploit children. Further, the Supreme Court has recognized in the past that strengthening the protection of children from sexual offences is vitally important in a free and democratic society (Mills, para 23).Given these considerations, an adult cannot reasonably expect privacy in a conversation with a child with whom they do not know (Mills, para 23). In this case, s. 184.2 of the Criminal Code is not applicable because there was no private communication. A communication cannot be private where the accused has no reasonable expectation of privacy in it (Mills, para 34).
Justice Karakatsanis’ Opinion
Justice Karakatsanis wrote the second opinion for the Court with Chief Justice Wagner concurring. She also finds that the accused had no reasonable expectation of privacy in the messages. However, rather than strictly applying the totality of the circumstances test, she takes a commonsensical approach. Justice Karakatsanis finds that there is no search and seizure where a suspect communicates in writing with an undercover police officer for two reasons. First, there is no reasonable expectation that messages will be kept private from the intended recipient (para 36). The Court has already found that individuals have no reasonable expectation of privacy in their conversation with undercover police officers (Mills, para 42, citing R v Fliss, 2002 SCC 16). No greater expectation of privacy should be afforded to an online or offline conversation with an undercover police officer just because it is in writing rather than in person (Mills, para 44).
Second, this type of sting cannot be called a search or seizure because the police only received what was intentionally sent to them (Mills, para 36). The police did not interfere or surreptitiously record a private conversation; they participated in one (Mills, paras 36, 46). In contrast to State video or audio surveillance, the accused chose to write to an individual knowing that by doing so, he would co-author a record, which each would retain a copy of (Mills, para 46). Thus, Justice Karakatsanis finds that while although individuals have a reasonable expectation of privacy in their messages, per Marakah, they do not have a reasonable expectation of privacy vis-a-vie each other (Mills, para 49-50). The use of Snagit was also not a search and seizure, because it only created a copy of a pre-existing record (Mills, para 56).
Justice Karakatsanis concludes that s. 184.2 of the Criminal Code is not applicable, because s. 8 of the Charter is not engaged (Mills, para 58).
Justice Martin’s opinion
Justice Martin is the only panel member to find that the accused had a reasonable expectation of privacy in the messages and that his s. 8 Charter rights were infringed. Nevertheless, Justice Martin would admit the messages under s. 24(2) of the Charter.
She also finds that s. 184.2 of the Criminal Code is engaged by the Snagit images.
Justice Martin views Mills as R v Duarte,  1 SCR 30 for the digital age. Duarte concerned a group conversation which was, with the consent of two persons, surreptitiously recorded (Mills, para 82). The Court held in Duarte that warrantless electronic State surveillance, even where one or more persons in the interaction is participating in the surveillance, violates s. 8. Justice Martin finds that the essence of Duarte is that recording private communications violates s. 8 because it changes an individual’s fleeting words into a permanent documentary record and destroys the right of a speaker to choose their listeners (Mills, para 83). In R v Wong,  3 SCR 36 it was determined Duarte should apply to all electronic technology the State can use for surveillance (Mills, para 87). Justice Martin finds that Duarte still applies to contexts where a communication method creates documentation, and the participants know it does. Contemporary electronic communications are sufficiently analogous to surreptitious electronic recordings in their informality, immediacy, permanence, transmissibility, and reliability, such that they equally deserve s. 8 Charter protection (Mills, para 91).
Mills is illustrative of the limitations of the reasonable expectation of privacy approach to s. 8 in the digital age. Making a search contingent on a reasonable expectation of privacy is problematic when a technology or mode of communication is new and the norms of its use are unsettled. When the SCC is asked to decide search and seizure cases involving private property it can look to norms about home ownership which have been determined over hundreds of years. These norms can take the form of old-age legal principles or even historical statements about the role of the home in society. However, with new technology the SCC cannot always turn to the past to imagine what our future ought to look like. Mills is emblematic of that. There is little common ground between the different approaches the Court took. Much like internet privacy in our culture, it was divisive. The SCC repeatedly emphasizes that this determination is normative, and that may be precisely the problem in circumstances where there are few established norms about the correct uses of, rights, and acceptable risks of new technologies (Mills, paras 80).
Further, Mills creates more uncertainty about the relevance of the relationship of the interlocuters to the reasonable expectation privacy analysis. Justice Brown tells us that you have no reasonable expectation of privacy when an adult messages an unknown child. However, the question remains if there are other classes of relationships which might also have no reasonable expectation of privacy when sending online messages. Justice Karakatsanis’ concurrent opinion arguably opens the door to a variety of online police stings with an undercover police officer as the recipient of the messages.
Mills preserves the police’s capacity to conduct stings targeting perpetrators of child sexual offences without judicial authorization. However, this comes with a modest cost. In Mills, the Court has introduced uncertainty about whether Internet communication between strangers will attract s. 8 Charter protection. It also reflects the difficulty the Court will face ahead, as it is continually asked to make legal determinations on the unsettled norms of how new technologies are used.