Privacy and Policing

July 16, 2019
Clayton Rice, K.C.

An online sting operation, the entry of private property and a midnight pedestrian stop produced three recent rulings from the Supreme Court of Canada that considered the parameters of police powers under the Charter of Rights. All three cases raised questions of privacy rights.

1. The Online Sting

Cst Greg Hobbs of the Royal Newfoundland Constabulary created a Hotmail account posing as Leann Power, a fictitious fourteen year old girl. He then created a fake Facebook profile under the same name. Sean Patrick Mills took the bait and, over two months, communicated with Leann by messages and emails.

On May 22, 2012, Mills was arrested in a park where he had arranged to meet Leann. He was charged with child luring under s 172.1 of the Criminal Code. He brought an evidence exclusion motion asserting that the police should have obtained a one-party-consent wiretap authorization under s 184.2 of the Code and that the seizure of his communications violated his right to be secure against unreasonable search or seizure under s 8 of the Charter.

The trial judge held that the messages were private communications and a judicial authorization was required from the point where Cst Hobbs became aware of Mills’ “potentially inappropriate interest” in Leann. However, the trial judge denied the exclusion application and admitted the evidence. Mills was convicted and appealed.

On February 10, 2017, in a ruling reported as R v Mills, 2017 NLCA 12, the Newfoundland and Labrador Court of Appeal upheld Mills’ conviction but reasoned that the seizure of his communications was not an intercept under s 183 of the Code. Justice B.G. Welsh held, at para 13, that interception “requires the involvement of a third party”. The intended recipient in a direct communication between two people “cannot be characterized as having ‘intercepted’ a communication meant for that person.” The trial judge therefore committed reversible error in concluding that a wiretap authorization was required. However, Justice Welsh went on to hold that Mills did not have an objectively based reasonable expectation of privacy and Charter s 8 was not breached.

On April 18, 2019, the Supreme Court of Canada released its split majority ruling reported as R v Mills, 2019 SCC 22 with Justice Sheilah Martin dissenting for reasons grounded in privacy law but concurring in the result. It was not in dispute that Mills subjectively believed he was communicating with a child who was a stranger to him. His claim was, therefore, that he retained the ability to selectively choose with whom he would share certain communications. “That presuppose[ed],” wrote Justice Russell Brown at para 22, “that there is nothing inherently different between a relationship involving an adult and a child unknown to them, and other relationships, for the purpose of the s 8 privacy analysis.” In analyzing the “normative question” when Canadians ought to expect privacy, Justice Brown went on to hold, at para 23, that “adults cannot reasonably expect privacy online with children they do not know.” That the communication occurred online did not “add a layer of privacy, but rather a layer of unpredictability.”

2. Entry of Private Property

On May 31, 2019, the Supreme Court of Canada released the 3-2 opinion in R v Le, 2019 SCC 34 reversing the 2-1 ruling of the Ontario Court of Appeal reported as R v Le, 2018 ONCA 56. I discussed the ruling of the Ontario Court of Appeal in a previous post to On The Wire titled Does ‘Control’ Determine Privacy Rights? dated August 30, 2018.

On May 25, 2012, Tom Le was socializing in the backyard of a Toronto townhouse owned by the mother of Le’s friend, Leraldo Dixon. Three police officers entered the fenced backyard through an open gate. The shakedown began: “How are you guys doing?” One of the officers asked Le what was in his bag. Le ran and a brief foot chase ended when the officer won an all-out fight. Le was convicted of drug and firearm charges. The Ontario Court of Appeal dismissed his appeal. Justice David H. Doherty held, at para 41, that Le did not have an objectively based reasonable expectation of privacy under the test for a territorial privacy claim in R v Edwards, [1996] 1 SCR 128. He therefore lacked standing to challenge the search of his person or bag under s 8 of the Charter.

Justice Peter D. Lauwers, in dissent, at para 128, rejected the majority opinion as inconsistent with “ordinary life” in a democratic society. Citizens do not leave their Charter rights at home only to resume them when they return later. The case acquired national interest in legal circles because Le asked the Supreme Court to reconsider the property-based, and much criticized, Edwards test for standing.

Writing for the majority of the Supreme Court of Canada, Justices Russell Brown and Sheilah Martin held, at para 16, that the appeal could be decided as a question of arbitrary detention under s 9 of the Charter and it was not necessary to consider the s 8 issues. Reconsideration of the test for standing will thus wait for another day.

In concluding, at para 16, that “[i]t was precisely this sort of police conduct that the Charter was intended to abolish” Justices Brown and Martin held, at paras 47 and 126, that the police entered the backyard of a private residence as trespassers, exerted “dominion over the individuals” from the time of entry, and effected a detention that was immediate and arbitrary. Because the case was one of “serious police misconduct”, the firearm, drugs and cash were excluded from evidence and acquittals were entered.

3. The Street Check

On November 19, 2015, Omar Muhammad Omar was walking along a street in Windsor, Ontario, just after midnight with an acquaintance, Morpheu Smith. Two police officers pulled up and “directed them to stop and come over to the patrol car.” The officers got out and asked for identification. Omar gave his wallet to one of the officers who went to the patrol car to “run their names”. The remaining officer asked them to remove their hands from their pockets. The officer then saw the barrel of a gun in Omar’s pocket and yelled “Gun!” Omar was tackled, arrested and charged with drug and firearm offences.

Omar moved to exclude. The trial judge held that he was detained “at least by the time he was asked for identification.” The detention was arbitrary in violation of Charter s 9 and the search of his person breached s 8. However, the trial judge denied the exclusion motion finding that “the police subjectively believed that they were not detaining” Omar and they acted in good faith. Omar was convicted. He appealed.

On December 4, 2018, the Ontario Court of Appeal released the 2-1 ruling reported as R v Omar, 2018 ONCA 975. Writing for the majority, Justice R.J. Sharpe held, at para 30, that the trial judge gave “unwarranted weight to the subjective good faith of the officers” and erred in situating the police conduct on the “continuum of police misconduct” that guides analysis of the seriousness of state conduct. In dissent, Justice D.M. Brown, at paras 83 and 105, found the “waters of psychological detention” somewhat murkier than the majority. The trial judge had accepted the evidence of the officers and there was no legal error in her finding that the police conduct “would not fall on the more serious end of the spectrum”. It is, however, Justice Brown’s balancing of society’s interest in a trial on the merits that touches controversy.

Justice Sharpe stated, at para 56, that “there is no ‘firearms exception’ requiring that guns obtained in breach of Charter rights be admitted into evidence”. Justice Brown, at para 123, did not take issue with that statement – “put that way” – but went on to say this: “[T]o fail to give some recognition to the distinctive feature of illegal handguns – which are used to kill people or threaten them with physical harm, nothing else – and, instead, to treat them as fungible with any other piece of evidence risks distorting the Charter’s s 24(2) analysis by wrenching it out of the real-world context in which it must operate.” Society’s interest in a trial on the merits is enhanced where the offence is one that literally involves the safety of the community. (See: R v Chan, 2013 ABCA 385, at para 49)

On May 23, 2019, the Supreme Court of Canada released the brief judgment of a 4-3 majority reported as R v Omar, 2019 SCC 32 reversing the Ontario Court of Appeal and restoring the convictions “substantially for the reasons” of Justice Brown. There are two takeaways here. First, the majority suggested that “it may be” that consideration should be given to the availability, under s 24(1) of the Charter, “of remedies other than exclusion of evidence when dealing with s 24(2).” The dissenters said “it may be” that consideration should be given to whether the police should caution persons that they stop and question “that such persons need not remain or answer questions.”

4. Conclusion

What, then, might be said about these cases collectively?

Dissenting in Mills, but concurring in the result, Justice Martin was of the view that Mills had an objectively reasonable expectation of privacy that a permanent recording of his communications would not be surreptitiously acquired by an agent of the state without a wiretap authorization. The use of Snagit screenshot software by the police in real-time was an interception. It’s called participant electronic surveillance. The electronic communications in this case were “a hybrid of an oral conversation and the surreptitious electronic recording of that conversation.” They attracted privacy protection. I’m with Justice Martin on all of that. (See: R v Duarte, [1990] 1 SCR 30)

Justice Martin also criticized the majority, at para 126, for taking the “normative position” that “adults cannot reasonably expect privacy online with children they do not know” because it engages the court in “an unnecessary and unprincipled valuation of personal relationships when this factor is irrelevant to the s 8 inquiry.” The determination of a reasonable expectation of privacy is “content neutral”. However, Justice Martin agreed that the admission of the evidence would not bring the administration of justice into disrepute. And that takes me to the issue at the core of the exclusion test.

The question is: Why does society’s interest in a trial on the merits have any role in the exclusion analysis? To return to Justice Brown’s dissent in Omar, the test for exclusion is already “wrenched” from the real-world context in which it operates. The fundamental issue in police conduct cases is always this one: Does the misconduct require the court to disassociate itself from the evidence to preserve the integrity of the justice system? The long-term repute of the justice system is not enhanced by a test that forces Charterapplicants to come to court with loaded dice. The societal interest in a trial on the merits will almost always favour the state. It is one explanation why an egregious case like Le survived seven years of litigation to arrive at an obvious destination.

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