Criminal Law

Case law protecting digital privacy rights intact: Presser

By Randy O’Donnell, AdvocateDaily.com Associate Editor

A solid body of case law protecting digital privacy rights remains unshaken following a Supreme Court decision that undercover police officers do not need to obtain a judicial warrant before using email or instant-message services to communicate with a child-luring suspect, Toronto criminal lawyer Jill Presser tells AdvocateDaily.com.

Presser, who represented intervener Canadian Internet Policy and Public Interest Clinic (CIPIC) before the top court, says the decision restricts itself to a very specific set of circumstances.

“The plurality decision authored by Justice (Russell) Brown is actually a very narrowly circumscribed exception to the recognition of privacy in one-on-one digital communications,” she says. “I think it’s an exception that actually proves the general rule of privacy protection.”

Presser, principal of Presser Barristers, says the high court decision came in the case of a Newfoundland man convicted of internet luring after a police officer posed online as a 14-year-old girl named "Leann." A constable created an email account and Facebook page for the fictitious girl in 2012 to see if people online were preying on underage children.

The officer received a Facebook message from the man, who was 32, leading to an exchange of emails that turned sexual, The Canadian Press (CP) reports.

Police used a screen-shot program to capture and record copies of the communications, but they did not have a court-approved warrant. The man was arrested in a St. John's park where he had arranged to meet the girl, the news agency says.

His counsel argued at trial that police violated his s. 8 Charter guarantee against unreasonable search or seizure and that officers should have obtained a warrant for their investigation.

The trial judge said the man's rights had been violated but still allowed the screen captures into evidence and found him guilty. An appeal court ruled the police did not need judicial approval for their operation and upheld the conviction, prompting the appeal to the nation's top court, according to CP.

All seven Supreme Court judges who heard the case concluded the defendant should be found guilty. A majority said that adults cannot reasonably expect privacy online with children they do not know.

In reasons adopted by the majority, Brown wrote that in most cases police are unlikely to know in advance of any potential privacy breach — for example, whether the child is truly a stranger to the adult.

"Here, the police were using an investigative technique allowing it to know from the outset that the adult was conversing with a child who was a stranger,'' the decision said.

Presser says Brown took great care to limit the scope of the ruling.

“They are very clear that they are not articulating a new general rule. They’re focusing on that very particular investigative technique that’s at play here, and for that circumstance, they say ‘OK, no expectation of privacy,’" she says.

While agreeing that the defendant should be found guilty, Justice Sheilah Martin wrote in the decision that police should have obtained court permission for the operation.

She argued the nature of the relationship — an adult communicating online with a child they do not know — was irrelevant to weighing privacy rights.

“Casting suspicion on an entire category of human relationship not only stigmatizes that relationship — it exposes meaningful and socially valuable communication to unregulated state electronic surveillance,'' Martin said.

Presser says the dissenting justice wrote, "an absolutely beautiful, and I think a correct decision, in regards to s. 8 of the Charter."

However, she notes that Brown was careful to highlight the particular circumstances of the case and stressed that the court was not suggesting police could simply monitor communications in the hope of stumbling upon a conversation that reveals criminality.

“The Supreme Court has been incrementally developing a body of law around digital privacy that is solidly protective,” Presser says.

“Sometimes the growth of jurisprudence in an area of law happens in leaps and bounds, and sometimes in small increments. Sometimes you build your house with large planks and other times with just a brick or tile,” she adds.

“This case is certainly not a big plank in our move toward jurisprudence that is digital-rights protective, but I don’t think the Supreme Court has retrenched or gone backward. They’ve not torn down any planks. I think they’ve said, ‘We’re carving out a small exception.' But, that exception proves the edifice we’ve been building is still standing and still in progress,” Presser says.

With files from The Canadian Press

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