Four Newfoundland men have spent months waiting for the Supreme Court of Canada to make a decision when it comes to the privacy rights of those accused of online child luring.
Now that the court has determined police don’t need a warrant for undercover operations when investigating child predators online, the men are expected to choose how to proceed with their own cases.
Lawyers for 54-year-old Christopher Barnes of St. John’s, 29-year-old Jeffrey Fowler of C.B.S., 29-year-old Nick Jones, formerly of St. John’s, and 31-year-old Gary Lockyer of Clarenville had asked a provincial court judge to postpone the cases until the Supreme Court ruled on the case of Sean Mills, a Paradise man convicted in 2015 of luring a 14-year-old girl online.
Barnes, Fowler, Jones and Lockyer were arrested through individual police stings, in which undercover officers set up fake social media profiles and email accounts and posed as children, responding to messages alleged to have come from the accused.
Mills — who was represented by the same law firm as Barnes, Fowler, Jones and Lockyer — had been arrested in similar circumstances, and later convicted and given a year-long jail sentence. The girl with whom he thought he had been chatting was actually a male RNC officer who had set up a fake Facebook profile. The officer received a message from Mills, who wrote, “Good Lord! For having just one picture on Facebook, you sure picked a good one. Beautiful!”
A conversation ensued on Facebook and via email, with Mills asking the “girl” to delete their conversations so no one else would find them. Mills was arrested when he arranged to meet the “girl” in Bowring Park and police officers showed up instead.
At the time of Mills’ sentencing, Judge David Orr said he had concerns with the police investigation and noted investigators had not gotten a warrant when it came to the conversations with Mills, though he acknowledged there were no policy guidelines for aspects of the investigative techniques.
Orr ruled Mills’ privacy had indeed been breached by the investigators, but that it wasn’t serious enough to warrant a dismissal of the charge.
Mills appealed his conviction in Newfoundland and Labrador Supreme Court, and took it to the country’s highest court after that appeal was dismissed, saying police should not have intercepted his private online exchanges without a warrant and his right to privacy had therefore been breached.
Having heard the appeal almost a year ago, the Supreme Court of Canada Justices upheld Mills’ conviction in a unanimous 7-0 decision, which was released Thursday. Although they differed in their reasons, the majority ruled Mills did not have a reasonable expectation of privacy and determined police do not need judicial authorization to intercept communications while investigating cases of potential child predators.
“When undercover police officers communicate in writing with individuals, there is no search or seizure...,” two of the justices wrote. “This is because an individual cannot reasonably expect their words to be kept private from the person with whom they are communicating. Here, the police did not interfere with a private communication between other individuals; they directly participated in it.
“Here, an undercover police officer conversed with (Mills) using Facebook and email. This is no different from someone speaking to an undercover police officer in person.”
Another justice agreed with Orr’s original ruling, saying Mills would have had an expectation of privacy that was breached when police used screen capture software to keep a permanent copy of his messages, but it didn’t matter much in a big scheme of things.
“While the impact of the breach was significant, the seriousness of the breach was minimal,” the judge wrote. “Exclusion of relevant and reliable evidence in a child-luring case, obtained using tactics that police had good reason to believe were legal at the time of the investigation, would bring the administration of justice in disrepute.”
Mills has already completed his jail sentence, but is still named on the country’s sex offender registry.
The cases of the four local men who were awaiting the appeal decision will soon be called again in provincial court, where their lawyers are expected to enter pleas to the charges on their behalf.
Barnes was arrested in 2017 and faces charges of luring and making sexually explicit material available to a child under 18, arranging to commit a sexual offence against a child of the same age and exposing his genitals to a child under 16. The alleged offences happened between May and August of 2017.
Fowler was charged in 2016 with luring and making sexually explicit material available to a child under 18, and exposing his genitals to a child under 16.
Jones was arrested in February 2018 and faces two counts each of luring children under 18 and under 16, as well as two counts of knowingly corrupting morals through obscene written material.
Lockyer is facing the most charges of the four men, with a dozen in total, including luring children, exposing his genitals to a child under 16 and making child pornography.