A Newfoundland and Labrador Provincial Court has found a section 8 Charter violation by undercover officer posing as young girl during ‘luring’ investigation making record of chat room communications with accused.

R. v. Mills [2013] N.J. No. 395 Dockets: 0113PA0055 and 0113PA00937 – an officer created a Hotmail account for a fictitious 14 year old female person.  The officer then created a Facebook page and profile with background information listing her address as St John’s and that she was a student at a local high school. He used a profile picture he obtained on the internet for both the Hotmail and Facebook accounts.  The officer did not make any “friend” requests for his Facebook page, but received several friend requests from other individuals as a result of having listed the local high school as his profile high school. He received other friend requests from other individuals who were friends of the people he had already agreed to friend and added them to his Facebook page.

Nearly a month later, he received a Facebook message from Mr. Mills asking about the profile picture. The officer responded to Mr. Mills and asked which person he was in his pictures on his Facebook page. Mr. Mills responded. The officer corresponded with Mr. Mills saying “she” was new to Facebook and unfamiliar with what to do. Mr. Mills responded to “her” and asked to see more pictures. It is clear from the message content that he realized her age as he stated “But you seem really sweet and I don’t care about someone’s age. All that matters is the kind of person they are. … Are you open to meeting new friends, meeting new people to hang out with you?”

From the photographs he observed on Mr. Mills Facebook page, the officer obtained the license number of his motorcycle and performed a motor vehicle registration check. From this he learned Mr. Mills address and date of birth. In order to ensure that he had captured all the information on the screen, the officer employed a program called “Snagit” which allows the computer user to capture and copy the information on the screen. Snagit is a screenshot program that captures video display and audio output. The officer employed the “Snagit” program on each of his communications with Mr. Mills.  The “Snagit” program is a program that is available to the public and commonly used. In addition to the screen captures, the officer performed a CPIC check on Mr. Mills and learned that he had been convicted of impaired driving in BC in 2001. The officer also ran an ICAN check on Mr. Mills and learned there were three hits on him. In 2006 he was a suspect in a sexual assault on a 16 year old girl and was the driver in a motor vehicle accident and in 2007 and he was the complainant in a theft.

Mr. Mills sent a message to “her” Facebook page and provided his cell phone number and asked what she was doing on the weekend. Mills sent an email to “her” and stated his age was 23 (it was 32), that he was a carpenter and asked her to send him a text message and he would keep her entertained. The officer indicated “she” did not text and wanted to use emails.  Mr. Mills continued to send emails to “her” for the next two months until his arrest. There was only one occasion when the communication between the officer and Mr. Mills was carried out outside of the email traffic; that was when the officer posted a comment on Mr. Mills’ Facebook wall. Mr. Mills removed the post and sent a message to “her” as follows: “Look I don’t want you to be upset but I had to remove it. Nothing personal, It’s just my Mom is on my facebook and she is really old fashion. I’d rather not hear what she has to say about our age difference.”

In addition to the communication between the officer and Mr. Mills, there was also communication between another officer and Mr. Mills. The second officer created a fictitious person, another teenage girl, also 14 years of age. The second officer corresponded with Mr. Mills for nearly two months on Facebook, Hotmail messenger and Hotmail email. The second officer testified that using the identity, he had initiated contact with Mr. Mills by sending a friend request to Mr. Mills shortly after creating the profile. The second officer’s communication was generated as a direct result of the first officer’s profile and was directly related to that officer’s activity.

The court said that through the participation in these communications, the undercover officers gained access to Mr. Mills’ cell phone number and subscriber information, Motor vehicle registration information including residential address and date of birth. With that information obtained, the officer was able to perform both CPIC and ICAN checks on Mr. Mills.  The judge said:

“… [I]t would appear that chat messages and emails are or in some instances may be electronic communications depending on the circumstances of their transmission and can fall within section 183. Certainly a review of the exhibits GH #1, #2, and #3 indicates that while the messages took place over an extended period of time there were occasions when there was an immediacy to them with a series of messages over a short space of time. For example, the exchange of emails between Mr. Mills and the first officer has all the characteristics of a private conversation. Consequently I find in this case the emails and chat messages are electronic communications and fall within section 183.

In this case, employing the “Snagit” program was an additional seizure of the communications beyond the recording that automatically takes place in the recipient’s computer. With respect to the expectation of privacy nothing turns on state intrusion being characterized as a search or a seizure the test is the same. In R. v. Dyment, [1988] S.C.J. No. 82, 66 C.R. (3d) 348: “If I were to draw the line between a seizure and a mere finding of evidence. I would draw it logically and purposefully at the point at which it can reasonably be said that the individual had ceased to have a privacy interest in the subject- matter allegedly seized.”

In addition to employing the “Snagit” program, the officer used the information he received from Mr. Mills in his email to do searches on CPIC and ICAN. These are data bases that could not be accessed by the general public and are not something that an email correspondent would expect the recipient to be able to access.

The officer testified that there were no police policy manuals setting out any limitations or guidance for the technique he was employing. The manner in which the investigation was carried out was left to his discretion and he did not have any written policies or procedures to guide him to set the limits on the tactics he employed. It seems clear that prior authorization and judicial supervision would be appropriate.

In this case, the officer was aware of Mr. Mills and his potentially inappropriate interest in a 14 year old girl.

It was at that point when Mr. Mills was identified as the target that he should have sought authorization. For the purposes of this decision, I find that he should have obtained an authorization pursuant to section 184.2 and a general warrant. It seems clear that the 184.2 authorization was necessary to capture the chat and email communications and the general warrant for the Facebook page and photographs and to perform the additional data searches. The surveillance continued without authorization for a period two months. I find that as a result there is a breach of his section 8 rights.”

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