A police officer in St. John’s, Newfoundland set up Hotmail and Facebook accounts for a fictitious fourteen-year-old girl named Leann. On the Facebook profile page, the male officer provided information that Leann went to a local high school. The officer included a picture that he had obtained from the Internet. The Facebook account soon started receiving friend requests.
A little less than a month had passed when “Leann” got a message from a 32-year-old male by the name of Sean Mills asking about her Facebook profile photo. The officer posing as Leann responded and a series of email communications ensued between the undercover officer and Mr. Mills. Within a very few days of the first contact, Mills had provided his cell phone number and had asked “Leann” to send him pictures of herself. He also lied by stating that he was 23 years old. It was clear from the communications before the court that Mills knew “Leann’s” age.
All of the communications between the two, with one exception, were by email. On one occasion, the undercover officer posted a message on Mills’ Facebook page, but Mills took it down and sent a message to “Leann” to explain why: “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.” [Para. 10]
The officer took screen captures of the emails that constituted the communications between him and Mr. Mills. The information from the emails was then used to gain access to the accused’s cell phone number and subscriber information, his motor vehicle information including his residential address and DOB.
Counsel for the accused brought a Charter application arguing that the evidence obtained through the emails constituted a violation of section 8 of the Charter and that the police should have obtained a one-party consent authorization to “intercept” these communications. The defence submitted that the alleged Charter violation should result in the excision of the emails from the ITO grounding the subsequently obtained search warrant.
After citing portions of Telus that held that text messages were private communications and the new definition of “intercept” Orr J held:
Based on this analogy, it 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 Constable Hobbs as Leann on the 22nd of March 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. [Para. 22] [Emphasis added]
Orr J. recognized that, on the facts of this case, the email communications were sent to the undercover police officer and so there was no seizure from a service provider as was the case in Telus nor was there an interception of the messages between the originator and a third party. As such, this was a situation akin to the one in Duarte  S.C.J. No. 2.
After discussing several of the modern cases that define the expectation of privacy in our electronic era, Justice Orr found that:
In this case, Constable Hobbs employed techniques that went beyond the mere passive recording of emails or chats; he employed the “Snagit” program to facilitate the seizures of the data. The accused had some expectation of privacy with his emails as he employed a user name and password for both his email and Facebook accounts. As pointed out by Mr. Purita, employing a user name and password is the standard used for privacy purposes in the industry and is indicative that the account holder intends to hold the account secure from intrusion. The fact that Mr. Mills was corresponding with individuals who might be employing an alias or using a false identity might limit that expectation but it does not completely eliminate it. [Para. 37][Emphasis added]
Ultimately Orr J. found a breach of section 8 and opined at what point the officer should have obtained judicial authorization—a one-party consent wiretap authorization and a general warrant--to capture the electronic communications:
In this case, Constable Hobbs was aware of Mr. Mills and his potentially inappropriate interest in a 14 year old girl on the 22nd of March. 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. [Para 44][Emphasis added]
Orr J did not make any determination regarding the exclusion of evidence but instead asked for further submissions on the remedy to flow from his findings.
This decision, which essentially mandates s.184.2 authorizations in order to conduct this kind of online undercover work, has the potential for far-reaching consequences for law enforcement if applied across the country. At the very least, the necessity of obtaining prior judicial authorization will result in greater resources being required for this kind of undercover operation.