R. v. MILLS, 2019 SCC 22

Sexual conversations between an adult and a child are not subject to privacy and can be assessed by the State without permission.

The case is before the Hon’ble Supreme Court of Canada. The Appellant is Mr. Mills who is 32 years old. In 2012, a Police Constable Greg Hobbs created some fake social media profiles on Facebook and Hotmail and indulged into sexually illicit conversations with Mr. Mills. All these conversations between the two were being recorded and captured by a software called “Snagit”. Mr. Mills was later arrested and charged with the offence of “child luring” under Section 172.1 of the Canadian Criminal Code.

The argument from the side of Mr. Mills was that the police had no authority to conduct an undercover operation without the permission of a judge which is a prerequisite under Section 184.2 of the Code. He argued that his conversations with Leann could not be brought in as evidence in the Hon’ble court of law as these were obtained out of the breach committed by the police. On the other hand, the police’s case was that they did not require any prior permission to conduct an undercover operation or to even screenshot such conversations.

When the case went before the Trial Court, the judge agreed with the argument presented by the Appellant, however still found him guilty considering that this was a serious offence. Court of Appeal elucidated on the issue by stating that the police did not even need a judge’s permission in the first place. The Hon’ble Supreme Court of Canada dismissed the appeal and explicated that privacy cannot be given by the state in a situation wherein an adult is indulging in sexually colored conversations with a child. Privacy as per Section 8 of the Canadian Charter of Rights and Freedoms is based on the doctrine of “reasonable expectation of privacy” by which it means that the State cannot search without permission and permission can be given by a judge in the form of a search warrant. For enhanced understanding, Court referred to precedents like Hunter v. Southam Inc., [1984] 2 S.C.R. 145 and R. v. Tessling, 2004 SCC 67: [2004] 3 S.C.R. 432.

The Hon’ble Court clarified that this doctrine is not applicable in the present case because this was a mere undercover operation and there wasn’t any issue of privacy from the very beginning. The same issue would have arisen if there would have been a situation wherein one of the parties had induced another to commit a crime which did not happen in the instant case as there wasn’t any active/ positive inducement from “Leann’s” side. As the majority of the bench concluded that there was no breach of privacy that corroborates to the fact that there was no “search” and Section 184.2 isn’t violated.

All judges agreed that the Court shouldn’t be posed with the question of whether something is private or not, instead they should indulge themselves in defining what a rational person expects to be private in the society. The same privacy conundrums were later sorted by the Supreme Court in cases like R. v. Reeves, 2018 SCC 56, R. v. Jarvis, 2019 SCC 10 and R. v. Morrison, 2019 SCC 15.