A LOOK DOWN THE ROAD TAKEN BY THE SUPREME COURT OF CANADA IN R V MILLS

Perhaps we, in the legal world, should not have been surprised by R v Mills2019 SCC 22, the most recent decision on privacy and the application of that concept in the section 8 Charter regime. When it comes to Supreme Court decisions, we tend to dispense with the facts in favour of the principles, but Mills reminds us, facts do still matter in our highest court. Factually, pragmatically, and contextually, we understand that the investigative technique used in Mills simply needs to work. But in the name of principle, precedence, and visionary reach, Mills leaves us wondering. To throw even more dust into the eyes, overlaid on the decision is confusion. The seven-panel decision is fractured, leaving us to count on our fingers who agrees with who to manage some sort of majority decision. In the end, the numeric tally does not really matter. This is a new kind of Supreme Court where everyone agrees in the outcome but how they get there leads us onto the road “less travelled” or to update the metaphor, leads us through the web of internet connections less surfed. Or does it? Millsmay be surprising but not unpredictable. It may also be just another decision exploring the reach of privacy in our everyday world and therefore part of the narrative, not the last word.

I have already suggested the facts matter and they do. Mills was charged with offences, colloquially described as internet child luring offences. Through the medium of social network, luring does become decidedly lurid as sexually explicit messages and pictures are sent to entice children. In Mills, the contact with fourteen-year old “Leann” led to the “in person” meeting, which ended in the arrest. All seemingly run of the mill, so to speak. But what “made all the difference” in this case is the reality of “Leann” as a false identity for a police officer. In many ways, this investigative technique is no different than many other undercover operations such as police posing as sex workers or drug dealers. But what makes this technique unique is the manner in which the investigation was done. By filtering the technique through internet wires, the relationship possibly becomes a “private communication” attracting s. 8 Charter interest. At the core of this argument lies the “ghost in the wires” and whether there is a reasonable expectation of privacy in this type of internet communications. 

I say “this type” of “communication” because of the decision in R v Marakah,2017 SCC 59. There, the majority viewed text messaging between potential drug dealers as a private communication. Stripped of the bad personhood attached to that messaging, the majority called out the relationship engendered by such communication as attracting a reasonable expectation of privacy. Like the “reasonable hypothetical offender” (See e.g. R v Morrisey2000 SCC 39 at para 2)  or, to use the new age term, “reasonably foreseeable applications” (See R v Morrison2019 SCC 15 at para 170) used in s. 12 analysis, the messages become a statement of content neutrality (See Mills at paras 25, 110, 117­–122). There is no value judgment placed on Marakah’s bad choice of friends or even worse, his bad judgment to deal drugs. Instead, the focus is on fostering relationships, as in the law of privilege, and what it takes to protect and maintain private relationships in the context of law enforcement. In this way, the concept of communication as relationship-building is further explored in s. 8 through the relationships we see ourselves having with the state. 

Interestingly, the dissent in Marakah held onto the hard focus of hardware by emphasizing the container in which the communications were residing (at para 151). This view is an easy extension from previous s. 8 case law including the majority in R v Fearon, 2014 SCC 77, viewing the search and seizure or rather, as in the case of digital devices, the seizure and search of the device as the key to the analysis. However, this perspective failed to recognize the pervasiveness of the privacy issue throughout all aspects of s. 8. From standing to s. 24(2) exclusion, reasonable expectation of privacy creates the Charter space for the s. 8 discussion. Unsurprisingly, Mills does not step back into the container as the analytical driver of the decision. Instead, it is the meaning of relationships, which creates the patchwork of decisions in Mills

Yet Mills does not just define relationships worthy of s. 8 protection. Nor does the decision define relationships in a vacuum. Rather it defines relationships in the context of the normative standard embedded into the reasonable expectation of privacy analysis. In R v Reeves2018 SCC 56, Justice Karakatsanis, at paragraph 41, touted the “normative, not descriptive” standard as the overarching theme of s. 8 to acknowledge what we in the cyberworld already knew – that electronic conversations are human not machine directed. Instead of this free-floating concept of human relations, the majority in Mills takes this chimerical-like quality of normativeness and pins it squarely onto the Criminal Code. Just as the criminal law reflects our fundamental values by underlining those acts worthy of moral approbation through just sanctioning, so too does the normative quality of s. 8 reflect the morally based vision of a safe law-abiding society.

In Mills, the Supreme Court is not navel gazing or conducting blue sky visioning. In Mills, the majority looks directly at the conduct in question, no neutrality here, and sees the so-called relationship between a child “stranger” and a criminally-minded adult as unworthy of protection. Section 8 is not a shield; it is not the “happy place” where we are free from state intervention, and it is certainly not the private place where we can propagate illegal conduct to our hearts’ content. Yet, this normative view does not take away from the shades of privacy previously recognized by the Supreme Court. As in R v Jarvis2019 SCC 10, privacy has a universal meaning. In this way, a relationship stylized by the manner of communication or defined by a space where privacy ebbs and flows, what will be protected through s. 8 is deeply contextualized. This is vertical contextualization, in which the Court drills down deeply through the stakeholders’ strata. The “totality of the circumstances” is viewed not just through the accused’s lens, not just through the perspective of the victims, but also through the community’s sense of justice. As in other Supreme Court decisions, where the public interest shares space with individual rights (See e.g. R v Jordan2016 SCC 27 at para 25) normativeness involves collectiveness.

Nevertheless, rejecting the Mills scenario as Charter worthy still keeps the s. 8 conversation alive. True, in essentials, Mills is about what is not a privacy right under s. 8. Yet, the decision also provides the contours for what is or possibly still could be engaged by s.8. For instance, the intersection of electronic communications and Part VIinterceptions of that communication is still very much in issue. From the pseudo-majority of Justice Brown to the pseudo-majority of Justice Karakatsanis (I say “pseudo” as Justice Moldaver concurs with both decisions making both majority judgment worthy) including the minority view of Justice Martin, the presence of surveillance becomes the indicator of interception. For the majority, surveillance is decidedly old-school involving state authorities who are outside of but looking into the private lives of citizens, whilst Justice Martin flattens out surveillance as the state, no matter where placed, looking at citizens, no matter where located. Certainly, Justice Martin’s description is more attune with the Internet of Things and the connectivity we all now experience in which no-one knows who is watching whom. To distill the differing viewpoints on the issue, this is “watching” versus “intruding.” Of course, since Hunter v Southam[1984] 2 SCR 145 and the s. 8 textual conventions since that decision speak of state intrusion. Watching, on the other hand, is much more insidious, much more powerful, and of much more concern to the community sense of justice.

Another issue unresolved by Mills is the Charter applicability in the transitional grey area between state intrusion to state participation. If s. 8 of the Charter is not concerned with investigatory techniques in which the state initiates a conduit for enforcement, then when does s. 8 become relevant? This is where previous case decisions provide no clear answer. To see this obfuscation, we need to look the intersection of two scenarios. One scenario focuses on third party consent while the other engages the Mills situation emphasizes when state intrusion is used, without prior judicial authorization, for the purpose of implementing an investigative technique. 

Third party consent is not novel. Like reasonable expectation of privacy, third party consent can impact all stages of the s. 8 analysis. It impacts standing issues through the measurement of control. It impacts whether state authorities have lawful authority to seize and access an electronic device belonging to the accused or a third party. Just as privacy is not an “all or nothing” concept (R v Jarvis, 2019 SCC 10 at para 61), neither is third party consent (See R v Cole2012 SCC 53). People share ideas, homes and hearts. People can too share control and authority over an object or a conversation. Millsdistinguishes the state as initiator of the private communication from the state as intervenor into a private communication despite consent from a third party. There is still Charter room in the shared conversational space where a third party is involved be it the concerned family member who hands over a device or the individual participating in the communication.

Mills permits the state actor to be whomsoever they need to be for investigative purposes but also as the initiator of the ruse. The decision leaves open the scenario where the concerned or involved third party hands over a device and the state authorities continue the conversation under the cover of the true participant of the communication. Here, there is still an intervention or a looking into a communication albeit through the eyes of the known recipient. There is a relationship, however the majority or minority defines it. Even if the original participant consents, Millsdoes not pronounce on the efficacy of that unauthorized intervention. This means, in Supreme Court terms, that we can expect more decisions on the issue.

 You may have noticed that I referenced in my opening paragraph a much-loved poem by Robert Frost, “The Road Not Taken.”  The poem is famous for symbolizing life’s choices and where they may or may not take us. In fact, that is not what the poem is about despite our ubiquitous reference to it as a life changing or even life affirming metaphor. When read carefully, the poem suggests we misread our life decisions. “Ages and ages hence” we will tell a tale of how we stood on the brink and choose a more challenging life journey. Yet, in actual fact, there was no such life altering choice to be made at the time as the roads “equally lay” “just as fair.” Perhaps the same can be said of the Mills decision. The decision does not take us down a road that makes “all the difference” but through the same interconnectivity of privacy ideas we already have before us. ‘Same but different’ may be an apt description of this decision and other recent Supreme Court rulings. Indeed, the fractured decision best mirrors who we are as a society, which is far from cohesive or uniform. 

We are presently very much at the crossroads of privacy and in the criss-crossing wires of the Internet of Things. There is an element of uncertainty as we stand at that intersection. But uncertainty may not be such a bad or scary prospect. Looked at with eyes wide open we can assess the potentialities of s. 8 and see perhaps through the differing perspectives of Mills a way forward taking with us a vision of who we want to be.

 

Can We Talk? A Brief Look At The Supreme Court of Canada’s Holistic Approach to Electronic Conversations

I am starting this blog posting with a pop culture literary reference. As soon as I read paragraph 17 of the Chief Justice’s decision in Marakah, the passage on taking the “holistic view” of the subject matter of the search as an “electronic conversation” transported me through space and time to a reading of Douglas Adam’s Dirk Gently’s Holistic Detective Agency (also now a tv series). The premise of the book is the concept of universal connectiveness through space and time. Dirk appears exactly where and when he should appear. Superficially, there may be no rhyme or reason for his appearances but on a deeper, holistic level there is, as they say, “method in his madness.” What appears chaotic is in fact logical – at least logical when viewing the events holistically. So too the majority in Marakah, authored by our very soon to be retired Chief Justice, looks beyond the heaviness of section 8 case law and clears a holistically-enhanced path toward search and seizure in the digital age.

To be honest, there are no real surprises in the majority’s approach to the s. 8 conundrum of text messages in the hands of a third party. What makes the decision so startling is the stark contrast between the universal, contextual and principled approach embraced by the majority and the law and order, hardware focused, nuts and bolts “modalities of transmission” approach of Justice Moldaver’s dissent. As in Fearon, this contrast between the majority and dissent highlights the divisiveness of technology. Not unlike grammar school where we thought about where to put the proper accent on the syllable (syl-la-ble as opposed to syl-la-ble), Marakah requires us to think about the proper emphasis the rule of law should place on privacy and technology.  Is it, as envisioned by the majority, an emphasis on human interaction involving the everydayness of conversations, which engage the who, what, when, where and how of that interaction? Or, is it, as suggested by the dissent, a matter of hardware choices, like going to the local Best Buy and using the device that is at hand (and fits best in your hand) at the time. The bigger digital question then emerges: how connected are we to our technology and how do we protect our society while in that immersive state?

Although Marakah gives us a crystal clear pixilated picture of section 8, standing, and reasonable expectation of privacy, it does not give us a sense of identity that Justice Karakatsanis did in the dissent in Fearon. I have written in a previous posting on Fearon of the differing linguistic choices employed in the majority and dissent in that case as a precedential device  (see “A Fresh Look at Fearon: How Language Informs The Law”). In Fearon, the public safety, law enforcement objectives trope is used by Justice Cromwell to strike a balance between privacy and state intrusion. The decision looks at the granule in an attempt to provide a teachable moment in the search for the reasonable search and seizure. In that decision, the chalice-like quality of the phone as a container was retained. For Justice Cromwell and the majority, the rule of law is predominant against the backdrop setting of technology. In contrast, Justice Karakatsanis in dissent renders her decision in the digital new world of technology using the aspirational aspect of our Charter values as a guide.

Similarly, Chief Justice McLachlin in Marakah anchors the privacy dimension of s. 8 to who we are as a society as envisioned through our Charter. We bare our souls through our emojis, our Snapchat stickers, and our cartoon inspired Bitmoji doppelgängers. It is no longer Descartes’s simplistic “I think therefore I am” but “I text therefore I am” or better yet, “I press send, that’s who I am.” The Chief Justice in Marakah crystallizes what we all believe, that the future is built on micro-chips, yet the human thumbprint can still be seen in its wires. Marakah sends that message loud and clear and, if our phone is not set to silent, we receive that message just as clearly.

 

Next blog up – “Keeping Up with the Joneses”: The SCC’s Decision in R v Jones

 

Touching On The Biographical Core of Personal Information: The Supreme Court of Canada’s Decision in Cole

As soon as the Supreme Court of Canada issued the Cole case, I went to the website to read it. Initially, I was drawn to the case hoping to find further clarification and the “filling in,” so to speak, of the legal principle of “reasonable expectation of privacy.” As with so many phrases used in law, legal interpretation is required to give the terms a more robust character and to solidify the meaning so that the mere hearing of the term conjures up the correct legal principle or the proper connections to be made between case law and precedents. The term of “reasonable expectation of privacy” is one of those terms which requires this incremental corporeality in order to make the law more certain. This is particularly needed in the Charter universe where heady terms like “Liberty” and “Freedom”, which by the way are not synonymous according to Chief Justice Dickson in the Edwards Books and Arts case, delineate the parameters of our Charter rights.

Certainly, the Supreme Court of Canada did not disappoint in the Cole decision, as they “filled in” the term in relation to the work place. In doing so, the court answered the question of whether or not there is a line drawn between personal and work and if so, where that line can and should be drawn. Of course, the judgment is not so practical as to suggest the exact place in which the line rests, but it does serve as a guideline for the employer-employee relationship. This posting, however, will not be a critical legal analysis of the judgment in relation to the answer provided by the court. Instead, this posting focuses on one paragraph, indeed the second paragraph of the majority judgment written by Justice Fish.

The second paragraph reads as follows:

Computers that are reasonably used for personal purposes — whether found in the workplace or the home — contain information that is meaningful, intimate, and touching on the user’s biographical core. Vis-a-vis the state, everyone in Canada is constitutionally entitled to expect privacy in personal information of this kind.

Two concepts found in this paragraph hold my interest. The first is the striking way in which the court defined the personal information found on a computer as “meaningful, intimate, and touching on the user’s biographical core.” Interestingly, this description, which does not refer to any previous case law, does, on a close reading, come from two earlier Supreme Court of Canada cases, which although are related to reasonable expectation of privacy in a search and seizure context, are not related to information found on a computer.

The first is the 2004 Supreme Court of Canada case, R v Tessling. This case is familiar to most criminal lawyers faced with an unreasonable search and seizure or section 8 challenge. Tessling involved the use by the RCMP of FLIR or forward looking infra-red technology. In this instance, the RCMP employed a FLIR camera on an overflight of property, which revealed infra-red images of the emission of heat radiating from the suspect property. The abnormally large amount of heat radiating from the observed property, together with informant information, resulted in the issuance of a search warrant. Police found on the property a large quantity of marijuana and weapons. Counsel at trial argued the overflight using the FLIR camera was an unreasonable search and seizure. The trial judge disagreed and the accused was convicted. However, the Court of Appeal for Ontario reversed the decision, finding there was a violation of s.8 and the evidence was excluded under s.24(2) of the Charter.

The Supreme Court of Canada, through the unanimous decision written by Justice Binnie (an Ontario appointment), did not agree with the provincial appellate court. They did agree that the ability to be free from state action while at our home (as in "the house of everyone is to him as his castle and fortress": Semayne's Case, [1558-1774] All E.R. Rep. 62 (1604)), unless there was prior judicial authorization to do so, was of paramount importance. Justice Binnie discussed how this concept of territorial privacy of the home has expanded to the protection of the bodily integrity of the person through the protection of the privacy of being at home. Thus, being at home suggests, “being the place where our most intimate and private activities are most likely to take place.” It is these activities, which the Charter must zealously safeguard.

In the end, the FLIR camera, revealing only heat images, did not step into the private refuge of the home. Equally, the camera did not step into the “intimate and private” activities, which are core to personal integrity and self-identity of a person as a human being.

Another issue discussed by Justice Binnie in Tessling, brings us to the second Supreme Court of Canada case to characterize personal information as “meaningful, intimate, and touching on the user’s biographical core.” According to Justice Binnie, the difficult decision was where to draw the line: at what point does the state over step their authority and wander improperly and, more importantly, unreasonably into the private lives of an individual. This too was the issue with which the Court struggled to understand in Cole.

To answer this, Justice Binnie turned to Justice Sopinka’s words in R v Plant (1993), another unreasonable search and seizure case involving a warrantless perimeter search of a dwelling house. Justice Sopinka, in starting from the underlying values of the Charter of “dignity, integrity, and autonomy,” found it an intellectually easy journey that

s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. (Emphasis in bold added)

Thus, it is out of a nuanced discussion on the privacy of the home, which expanded the concept of the “home as our castle” metaphor to another metaphor found in the idiom “home is where the heart is,” suggesting that it is not the structure that reflects who we are but what is inside – the people and the thoughts we leave behind.

As an aside, the 2011 Saskatchewan Court of Appeal in R v Trapp, which is also a child pornography matter considering the “reasonable expectation of privacy”, utilized these cases in determining the legality of the seizure of information from the accused’s internet service provider. In fact, Justice Cameron, speaking for the court, reviewed this seizure

to identify the import or quality of this information, having regard for the principle that section 8 protects a biographical core of personal information, including information tending to reveal intimate details of the lifestyle and personal choices of the individual.(Emphasis added)

Such an analysis lead the court to conclude that the seizure of the information was not contrary to the Charter.

This brings me to the second point arising from this short second paragraph written by Justice Fish. The finding in Cole not only “fills in” the term “reasonable expectation of privacy” but also “fills in” or further defines the Supreme Court of Canada’s interpretation of the Charter; the concept that the Charter reflects the underlying fundamental values of our society. The Cole decision merely continues the line of cases, which embrace the idea that Charter values, not necessarily concrete or corporeal Charter terms, lend meaning to Charter rights. Thus, it is the concept of “meaningful, intimate, and touching on the user’s biographical core,” coming from Charter values, which delineates the line of reasonableness.

Now back to the Cole case and the further expansion of personal information, as protected by Charter values, to personal information contained on a computer hard drive. Now, the private world of an individual’s has shrunk from the home as the container of our most intimate and meaningful thoughts to the nano-world of computers. Like a diary, the computer captures a timeline of who we are and who we want to be: our desires, our dreams, and our inner most thoughts. Recognizing this decision is truly a further “filling in” of Charter values helps us understand this decision more thoroughly and causes us to consider what will be next. Perhaps the intimacy of details on Facebook and other such sites will prove to attract more protection than initially thought. In any event, it is clear that the sanctity of the home has become the sanctity of the hard drive.

Can Criminal Law Keep Up With The Digital World?

A mere ten years ago, we did not “google” or “friend” or “wiki.” Twenty years ago, we did not listen to music on an iPod or talk on a Blackberry. Back then we bought Kodak film and waited to view our photos. The next decade should prove to be even more progressive as we start to use “bio interfaces” to directly connect to the Internet, thereby cutting out the “middle-man” or, to be more accurate, the “middle-machine.” With the direct ability to connect with technology, we will also see more data interfaces with which to interpret data, such as Wolfram Alpha. The advances and changes in technology have indeed been incredible.

With these new technologies, there will be challenges. Not in terms of how well we will adapt to the new advances: history has shown humans to be great adapters to new environments. Our challenge will be how well our institutions will be able to adapt and respond to the rapid changes. It is this challenge of how the criminal law responds to the new digital age, which was the subject of the panel presentation at the recent Alberta Law Conference.

To discuss this pressing issue, the panel consisted of two prosecutors with an expertise in presenting digital evidence in criminal cases: Daniel Scanlan, a B.C. Crown Attorney and author of Digital Evidence In Criminal Law and Marc Cigana, presently prosecuting the Quebec Hell’s Angels case. The discussion was first framed in the privacy context through the realities of society’s paradigm shift away from a full and robust privacy protection network, where personal information is jealously guarded and access to it is restricted, to a society of informed by social media, where intimate details are publically revealed and dynamically transferred world wide in seconds.

It is this new paradigm, which has kept the courts, the lawmakers, and the advocates behind the “eight-ball” and has created a legal disconnect. Decisions are rendered on technology, which by the time of the decision is no longer in use, thereby making the decision useless. Similarly, any legislative response is outdated by the time of the enactment date. The result is a patchwork of case law, too specific to be of much use as a precedent and lacking the informational basis to become legal principle.

The solution was a call by the panel for a more principled approach to technology. Instead of approaching digital evidence on a case-by-case basis, the participants in the criminal justice system must look beyond the facts and provide the evidentiary basis needed for a meta-decision on the use of digital technology. Such a decision or principle would produce a more measured response by our criminal justice system to new technological advances, thus promoting just results congruent with our digital age.

As it stands, the Courts struggle to conceptualize the new technology’s place in the legal literature. A neat example is the determination of the validity of a warrantless search of a cell phone based on the presence or absence of a reasonable expectation of privacy. Instead of viewing cell phones, as cell phones, and thus as a new entity requiring a unique reasonable expectation of privacy determination, the Courts struggle to pigeonhole cell phones into known categories. Thus the Court asks: Is a cell phone like a notebook? Or is a cell phone like a purse? Or is a cell phone like a computer? Unsurprisingly, the answer differs from case-case and from province to Province, leaving the case law in flux.

What is the Supreme Court of Canada’s position in this conundrum? So far, they have not made any cohesive determination on the issue but there is hope they will enter the fray with the Telus case, which recently received leave to appeal to the Supreme Court of Canada pursuant to s.40 as an issue of national importance, without being heard at the Court of Appeal level. In Telus, the police used a general warrant under s.487 of the Criminal Code to seize Telus records of text messages from the accused’s cell phone. The difficulty was the warrant gave authority not only for the seizure of historical messages, already sent, but also for the seizure of messages as they were being generated. Telus took the position such a seizure was akin to an interception of electronic communication under Part VI of the Criminal Code, which required a wiretap authorization.

Unfortunately, the framing of the case appears to be inviting the pigeonhole approach: Are the text messages merely letters in transit or are they more like a private conversation over the telephone? Instead of focusing on the characterization, the Court should be focusing on crafting a judgment, which will set down the general legal principles to be followed when faced with digital technology in the criminal law.

How they will in fact approach the issue will determine whether the digital future can easily live within our traditional precepts or whether our criminal justice system is just too outdated to face the challenges of tomorrow.