Talking to Strangers: A Critical Analysis of the Supreme Court of Canada’s Decision in R v Mills

Abstract

In R v Mills, an undercover officer acting without a warrant posed as a 14-year-old girl online and communicated with Mr. Mills through Facebook messages. The officer eventually arranged a meeting with, and arrested Mr. Mills who sought to have the message evidence excluded. 

The Supreme Court unanimously ruled to allow the evidence. However, only Justice Martin agreed that Mr. Mills’ s. 8 rights were engaged and infringed. This paper takes the position that the Mills decision is inconsistent with prior s. 8 jurisprudence regarding content neutrality and expectation of privacy in conversations. The type of sting operation used in Mills should have been classified as participant surveillance requiring a warrant.

In Mills, the Supreme Court unduly adjusted the balance of power to favour law enforcement. The result of the Mills decision is that law enforcement may continue to use this investigative technique unregulated, and unencumbered. Such an adjustment in favour of law-enforcement is not justified. Other investigative techniques are available to law enforcement and obtaining a warrant would not unduly hinder child luring investigations. Failure to oversee these operations could have a potential chilling effect on legitimate online relationships and reinforce stereotypes about hypersexualized youth online.