Screen captures are a common way computer users snap and save email or text messages. But if used by police as part of a sting are they an interception of communications that first needs a judge’s permission?
No, said the Supreme Court of Canada today.
In a case involving police pretending online to be a 14-year old girl to find adults interfering with children, the court said screen captures of conversations between the pretend girl and a Newfoundland man, Sean Patrick Mills, weren’t an invasion of privacy and didn’t violate the Charter of Rights.
The judges ruled unanimously that Mills’ appeal to throw out the evidence should because police should have got a wiretap order for the screen captures be dismissed. He had been convicted at his trial in 2014, a decision that was upheld by the Newfoundland appeal court.
Briefly, a police officer set up Facebook and Hotmail accounts to pose online as a 14‑year‑old girl named “Leann.” Mills sent Leann sexually explicit messages and arranged a meeting in a park, where he was arrested and charged with child luring. One of the main pieces of evidence against him were screen captures of his online messages with Leann.
Normally, if police want to intercept communications between two people a judicial warrant is needed. That’s backed up by the Charter, which says everyone has the right to be secure against unreasonable search or seizure.
The trial judge in 2014found that the messages between Mills and “Leann” were private communications and should have needed a judicial warrant to be captured. Mills, the judge said, had a right to expect privacy. However, the judge also ruled that admitting the evidence would not bring the administration of justice into disrepute. The Charter says evidence that would normally be rejected for violating the law can be admitted in court if the administration of justice would be brought into disrepute by excluding it. For its part the Newfoundland appeal court said the trial judge was wrong in concluding Mills had a right to privacy in these circumstances.
While all seven members of the Supreme Court dismissed Mills’ appeal, they did for different reasons.
Three judges said Mills couldn’t claim an expectation of privacy because he was emailing someone he believed was a child. Two other judges — including Chief Justice Richard Wagner — said a communication between two people being intercepted by police (and therefore the third person) would need a court order. However, in this case police weren’t the third person, they were involved in the communications posing as “Leann.” The screenshots, they added, were merely copies of a communication. “This use of technology is not intrusive or surreptitious state conduct,” they wrote.
A sixth judge agreed with the reasonings of both these groups. The seventh judge said using the screen capture without a judge’s order was unreasonable. However, she added, “exclusion of relevant and reliable evidence in a child‑luring case, obtained using tactics that the police had good reason to believe were legal at the time of the investigation, would bring the administration of justice into disrepute.”