The Supreme Court of Canada has ruled that sexually explicit online messages exchanged with a minor are not private and can be used in undercover police operations.
In a unanimous 7-0 decision, justices ruled that Sean Mills should be found guilty of child luring. Justices were divided on their reasons, but a majority ruled that police do not need a warrant to intercept communications for investigations involving child predators.
The majority said Mills did not have a reasonable expectation of privacy.
Mills was convicted of child luring in 2014 after an undercover operation by the Royal Newfoundland Constabulary. Investigators had set up fake Facebook and Hotmail accounts, posing as two teenage girls.
Mills engaged in sexually explicit exchanges with the 14-year-old persona ‘”Leann'” and eventually arranged a meeting in a local park.
This is a breaking news story. A previous version is below.
The Supreme Court of Canada rules today on an internet child luring case that could have a major impact on how police conduct sting operations.
Sean Mills was found guilty of one count of child luring for a sexual purpose using a computer in December 2014 after he was caught in an undercover Royal Newfoundland Constabulary investigation. He argues his constitutional right to privacy was violated because police did not obtain a court order for intercepting private online exchanges.
Two years earlier, police set up two Facebook profiles and email accounts with fictitious identities of 14-year-old girls. After exchanging sexually explicit messages, Mills arranged a meeting with ‘Leann Power’ at a local park.
Mills’ St. John’s-based defence lawyer Rosellen Sullivan said police should have obtained a warrant once it became clear that ages had been established and her client was considered a suspect in the ongoing investigation.
She said she believes the ruling could have significant consequences for ongoing and future undercover operations.
“It has implications for a lot of police investigations, obviously. I myself have a half-dozen internet luring (cases) with undercover police officers sort of waiting in the wings to see what happens on this decision,” she said.
Police officers used a screen shot program to capture and record copies of the email communications; they did not obtain judicial authorization to intercept communications. Mills’ home was searched after his arrest under warrant, and two computers were seized.
Rules for police
Sullivan said it’s important to establish rules regarding when police can and can’t obtain communications without a court order.
“I’m not saying, ‘Oh, let’s protect internet predators,'” she said. “I’m saying this protection has to be available to everyone.”
Crown prosecutor Lloyd Strickland said the potential impact on police investigations will depend on what the court decides and whether it sets out new rules.
He said undercover operations are responsible for a high percentage of arrests and prevent harm to children.
“For police being able to go online … and conduct these operations online, it is hoped, and I think it is reasonable to assume, that they are sparing younger boys and girls from having to deal with it,” he said.
“Because if the police don’t do it, what are the other options? You rely on a child to tell somebody?”
Don’t ‘hamstring’ police, chiefs warn
Mills has already served his year-long sentence, but has taken the case to the high court in the hope that a favourable ruling from the top court could clear his name from the sex offender registry.
Nine other parties intervened in the case, including several provincial attorneys general.
The Canadian Association of Chiefs of Police argued that the Criminal Code offence of internet luring is an “insidious crime” which can harm children through communications, even if the adult never meets with the victim.
In its written submission to the court, the association warned that if the court rules that a predator has a reasonable expectation of privacy and that authorization is required for undercover techniques, it will “hamstring” police trying to enforce the law.
“It will allow online predators to victimize children without fear of police detection. The onus would then be placed on the child or parent to report the crime, which runs counter to Parliament’s intention when enacting this legislation,” the submission reads, adding that any court order requirement could delay a predator’s arrest and put other children at risk.
The Canadian Civil Liberties Association urged the court to uphold Canadians’ privacy rights, arguing the reasonable expectation of privacy does not change because one of the participants in the conversation is an “agent of the state.”
“These investigative techniques may be reasonable if they have prior judicial authorization or if Parliament creates police powers specifically enabling them,” says the association’s written submission.
“But the fact that the police seek to use these investigative techniques can not overwhelm the analysis of whether there is a reasonable expectation of privacy in electronic conversations.”
This story originally appeared on CBC