Use of Screen Capture Software to Record Computer Chats does Not Constitute an Intercepted Telecommunication

Police Powers

Justice Michelle Fuerst, Justice Michal Fairburn and Scott Fenton

Facts: On February 28, 2012, a police officer created a Hotmail email account for a fictitious fourteen-year-old girl, named "Leann" together with a Facebook page, profile and picture. On March 20, 2012, the officer received a Facebook message from the Appellant. There was an exchange of emails over approximately two months, during which the Appellant stated that he was twenty-three years of age (he was in fact thirty-two). A meeting at a park between "Leann" and the Appellant was arranged for May 22, 2012, at which time the Appellant was arrested and charged with communicating for a sexual purpose with a person he believed to be under the age of 16.

In order to ensure that the messages between the Appellant and "Leann" were preserved, and that all information on the screen was captured, the officer employed "Snagit" a screen shot program that captures video display and audio output. The trial judge described the "Snagit" as akin to a photo or real evidence, but found that the use of the program constituted an unreasonable search under s. 8 of the Charter as the investigating officer failed to obtain an authorization for a consent interception under s. 184.2 of the Criminal Code to use "Snagit" to record the Appellant's telecommunications. The trial judge refused to exclude the evidence under s. 24(2) as a remedy for the breach of the Appellant's rights, and the Appellant was convicted. As an alternate remedy for the s. 8 breach, the trial judge reduced the sentence imposed by two months under s. 24(1) of the Charter. The Crown appealed the sentence imposed, on the basis that the trial judge erred in concluding that the use of the screen capture program constituted an intercept of a telecommunication. The Appellant cross-appealed on the basis that the he had a subjective expectation of privacy in the content of the telecommunications with "Leann."

Held: Crown appeal allowed.

Part VI of the Criminal Code applies only where a telecommunication is "intercepted". The fact that, unknown to the sender, the recipient of a telecommunication is a police officer does not change the nature of the communication, or transform receipt of it by the intended recipient, into an interception. If "Leann" had, in fact, been a fourteen-year-old girl, it could not be said that her receipt of the communications from the Appellant constituted an interception.

The use of the "Snagit" program did not affect the manner in which the communications came into the possession of the police officer. The program was simply a means to retain a communication. Making a copy of a received message, either on paper, or electronically, could not be characterized as an interception.

In all the circumstances, the Appellant's subjective expectation of privacy in the messages sent to "Leann" was not objectively reasonable. The Appellant was using electronic social media to communicate and share information with a person he did not know, and whose identity he could not confirm. On an objective analysis, the Appellant must have known that he lost control over any expectation of confidentiality in the messages; s. 8 of the Charter was not engaged.

Commentary: This case represents a common-sense consideration of the use of a computer software program to create an electronic record of a telecommunication and the application of the principles in R. v. Spencer, 2014 SCC 43, 2014 CarswellSask 343, for assessing whether or not a subjective expectation of privacy is objectively reasonable. The Newfoundland and Labrador Court of Appeal recognized that the software at issue was no more complex, or unusual, than taking a photograph or making a copy of a document. The fact that the communication that was later preserved was originally sent over the Internet did not substantially change the analysis. The court did not rule that an objectively reasonable expectation of privacy could not ever attach to a Facebook message, but that in this case, since the Appellant did not know, and could not confirm the identity of the recipient of his communications, his expectation of privacy in their contents was not objectively reasonable. This may not, however, be the end of the story. In the case of R. v. Marakah, 2016 ONCA 542, 2016 CarswellOnt 10861, the Court of Appeal for Ontario held that a person does not have a reasonable expectation of privacy in sent text messages because the sender does not retain control over what the receiver will do with the received text messages. The British Columbia Court of Appeal came to the opposite conclusion in R. v. Pelucco, 2015 BCCA 370, 2015 CarswellBC 2386. Marakah is scheduled to be heard by the Supreme Court of Canada on March 23, 2017.

R. v. Mills, 2017 NLCA 12, 2017 CarswellNfld 58 (N.L. C.A.)