Court File and Parties

COURT FILE NO.: CR-17-10000056-0000 DATE: 20180706 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – RICHARD PATTERSON Defendant

Counsel: Jennifer Stanton, for the Crown Frank Bernhardt, for the Defendant

HEARD: December 4, 5, 7, 8, 11, 12, 13, 14 of 2016 And January 3, 4, 5 and 8 of 2017

Bawden J.

Mr. Patterson’s Expectation of Privacy in Facebook Records

[1] Richard Patterson is charged with luring a child contrary to section 172.1 of the Criminal Code. It is alleged that Mr. Patterson used Facebook Messenger to lure a 15 year old boy for the purpose of committing a sexual offence. The victim of the alleged offence provided investigators with his Facebook password and gave them permission to download his communications with Mr. Patterson. Investigators reviewed those communications and concluded that they were incomplete. The Toronto Police Service then made a request to the United States under the Mutual Legal Assistance Treaty (MLAT) seeking an order from an American court requiring Facebook to provide the complete record of Mr. Patterson’s Facebook communications from its servers in Texas. The request was granted, an Order was made and Facebook sent all of the requested records directly to the officer in charge of this investigation.

[2] Mr. Patterson applies to exclude the evidence obtained both from the alleged victim and from Facebook based on a violation of his rights under section 8 of the Charter. It is the position of the defence that Mr. Patterson has a privacy interest in those messages and that investigators were obliged to obtain warrants from a Canadian judicial officer prior to reviewing Matthew’s Facebook page or opening the records forwarded by U.S. law enforcement officers.

[3] Prior to hearing any submissions with respect to the alleged Charter breach, I elected to hold a brief voir dire to determine whether Mr. Patterson has a reasonable expectation of privacy with respect to either source of the Facebook records. At the conclusion of that hearing, I concluded that he did not and therefore declined to consider the application any further. The following are my reasons for that decision.

[4] The defence position is premised on the decision of the Supreme Court of Canada in Marakah 2017 SCC 59. In Marakah, the court found that the accused had a reasonable expectation of privacy in text messages which had been seized from his co-accused’s cellphone. Mr. Bernhardt argues that Marakah is good authority for the proposition that Mr. Patterson retains a reasonable expectation of privacy in electronic messages that he sent and received over Facebook despite the fact that those records were saved in the victim’s own Facebook account as well as the Facebook servers in Texas.

[5] The Supreme Court of Canada in Marakah followed the framework set out in Cole to determine if the applicant had a reasonable expectation of privacy in his SMS communications:

a. What was the subject matter of the search? b. Does the applicant have a direct interest in the subject of the search? c. Does the applicant have a subjective expectation of privacy in the communications? d. Is the applicant’s subjective expectation of privacy objectively reasonable? In determining whether the expectation is objectively reasonable, the following factors are relevant: i. The place where the search occurred; ii. The degree to which the information seized can be described as private; iii. The extent of the applicant’s control over the place where the search occurred.

The Subject of the Search

[6] The subject of the search can simplistically be described as the entirety of Mr. Patterson’s electronic communications over Facebook using his Jim Jay, Josh Jay and Ric Patterson Facebook accounts. The defence argues that the subject of this search was similar if not identical to the SMS messages which were the subject matter of the search in Marakah. With respect, they are not.

[7] The SMS messages which were the subject of the search in Marakah were exchanged between two cellphones. The only intermediary between the two senders was the telecommunications companies which provided their respective cell phone service. The messages resided solely on the phones of the two correspondents and the content of the messages was limited to alphanumeric text. There were no images, videos or sound to add nuanced meaning to the communications.

[8] Text messaging is a narrow, targeted form of communication. Facebook is a broadcast. Depending on the user’s privacy settings, a Facebook page can be read by anyone in the world who is connected to the Internet.

[9] Mr. Patterson deliberately fashioned the Josh Jay and Jim Jay accounts in order to draw a particular type of Facebook user to his page. He was trolling for young gay males. D.C. MacInnis was able to navigate to the profile page for both accounts and read the posted biographical information without any need to be accepted as a "friend". She was able to see the profile pictures that Mr. Patterson selected for Jim and Josh Jay, read their biographical information and see the profiles of those who had befriended them on Facebook. A significant portion of what Mr. Patterson now seeks to exclude is information which he previously invited the world to see.

[10] Mr. Patterson’s conversations with the victim took place over Facebook messenger which is a private messaging service within Facebook. Private communications exchanged across the Facebook platform are more akin to the text messages in Marakah and they attract different expectations of privacy than the intentionally public messages which are visible on a Facebook user’s profile page. The subject of this search included both types of communications.

Does Mr. Patterson have a direct interest in the seized information?

[11] In Marakah, it was clear that the applicant had a direct interest in the communications because he was a participant in the text conversations and the author of the messages which were introduced as evidence against him. Mr. Patterson’s interest in his Facebook communications is not as clear.

[12] Mr. Patterson’s Facebook activities included several different types of communication. Those communications can be broadly grouped as follows:

a. Text based conversations with the victim which constitute the actus reus of the offence of child luring; b. Images and text received by Mr. Patterson as a member of a Facebook group where members would exchange images of child pornography and fantasize about the sexual abuse of children; c. The Facebook profiles, background images and subscriber information which Mr. Patterson used to create the Jim Jay, Josh Jay and Ric Patterson Facebook accounts;

[13] Mr. Patterson’s direct interest in the communications varies depending upon which form of communication is at issue. I find that he has no direct interest in the first category of communications, the text messages which he sent to the victim. Those messages constitute the actus reus of the offence of child luring. The constitutional rights which protect our privacy have never gone so far as to permit an accused to claim privacy in respect of his own criminal offences.

[14] Mr. Patterson’s claim to a direct interest in his communications as a member of the Facebook group is also precarious. When a Facebook user joins such a group, he implicitly consents to receiving any communication sent to the group by another member and also consents to his own messages being distributed to every other member. The members of the group have very limited means of confirming the identity of other members and they have no means of preventing members from distributing their communications outside of the group. Mr. Patterson arguably has a direct interest in his own contributions to the group but it would be very difficult to find that he has a direct interest in the entire group’s conversation simply because he was a member of it.

[15] Mr. Patterson does have a direct interest in the third category of his Facebook communications, the account details and profile pages for his three Facebook accounts. Bearing in mind that these communications were deliberately left open to any Facebook user to read, the expectation of privacy may be almost negligible but at least it can be said that Mr. Patterson has a direct interest in the content.

Did Mr. Patterson have a subjective expectation of privacy?

[16] It is ordinarily quite easy for an applicant to establish that he had a subjective expectation of privacy in his own electronic communications. Given his criminal history, it is obvious that Mr. Patterson would not want people to know that he was messaging with a 15 year old boy and by his own admission, he created the Josh Jay persona on Facebook in order that his communications could not be traced back to him. Mr. Patterson testified on the voir dire that he personally believed that his communications over Facebook would remain private and that evidence would ordinarily be sufficient to meet this criteria.

[17] But Mr. Patterson was not a credible witness and there is good cause to question whether he genuinely expected that his communications would remain private. The most obvious breach of Mr. Patterson’s privacy occurred when he conducted his Facebook messaging in a busy coffee shop where dozens of patrons were in a position to see the screen of his laptop. He made no effort to cover his screen when Mr. Lawrence took up a position immediately behind him and he continued in his messaging even after Mr. Lawrence had confronted him about the fact that he was messaging with young boys. It is hard to accept that Mr. Patterson genuinely believed that his messages would remain private when he made no effort to shield his screen in such a public venue.

[18] Mr. Patterson had 285 friends on Facebook. He was aware that those 285 friends had full access to his Facebook page and would be able to share anything that they saw. Mr. Patterson testified that it never popped into his mind that people would share the contents of his Facebook page. He acknowledged that he had set the privacy settings on his accounts in a fashion which left them “fairly open” to public scrutiny.

[19] Mr. Patterson testified that to the best of his knowledge, it was impossible to delete anything from Facebook. He knew that he was able to review all of his previous chats with friends and believed that they were able to do the same.

[20] In light of my conclusions concerning the objective expectation of privacy, I am prepared to guardedly allow that Mr. Patterson had some subjective expectation of privacy. His failure to shield his conversations while seated in the Tim Horton’s comes very close to extinguishing any subjective expectation of privacy but at least it can be said that he was only sacrificing his privacy with respect to the messages which were on his screen that morning rather than the entirety of his Facebook existence. Mr. Patterson was a member of a Facebook group which was devoted to the exchange of images of child pornography and fantasizing about the sexual exploitation of children. He was very aware of the illegality of this activity and the potential consequences if his membership in the group was discovered. There is a strong inference to be drawn from these facts that Mr. Patterson did believe that his Facebook communications would remain confidential and that inference cannot be entirely unseated by his careless messaging at the Tim Horton’s.

The Objective Reasonability of Mr. Patterson’s Expectation of Privacy

[21] Mr. Patterson’s claim to a reasonable expectation of privacy in his Facebook records dies here. No reasonable person would expect that communications such as these would remain private. Mr. Patterson was messaging with a 15 year old boy who had given him no assurance of confidentiality. The communications were conducted over Facebook messenger, a medium which seemingly keeps an indelible record of supposedly private communications. All of the messaging took place over the Internet with snippets and artefacts of the conversation being captured on devices, servers and systems at every juncture of the communication. A reasonable Internet user might hope that such communications would remain private but no one with even a modicum of understanding of information technology would expect it.

(i) The Place Where the Search Occurred

[22] The defence argument is premised on the suggestion that the text messages in Marakah are analogous to the Facebook communications which were seized here. The difference is vast and determinative.

[23] In Marakah, the only place where the communications resided were the cell phones of the two accused. Cellular phones are most commonly carried on the person of the owner and they are frequently password protected. SMS messages can only be accessed from the phone that sent or received them. They are not accessible through the network of the service provider which delivered them. A reasonable person would consider the possibility that the recipient of his text messages might disclose their contents but this is a risk which can be reduced by obtaining assurances of confidentiality. Both the technology and the practice of text messaging enhance the expectation of privacy for a reasonable user.

[24] The technological and practical uses of Facebook diminish a reasonable user’s expectation of privacy. A Facebook account can be accessed from any computer or device which has access to the Internet. When a Facebook user logs on to review his messages, digital artefacts of the communications will be left on the hard drive of the device which is used to access the account. Mr. Patterson’s Facebook friends may have accessed his messages on computers located in libraries, airports or even schools. They might have borrowed their parents’ computers or cell phones. Mr. Patterson had no means of knowing what device was used to access his messages nor any ability to prevent the extraction of his messages. As the number of locations where the communications may reside expands, the expectation of privacy in the communications diminishes. No reasonable user would expect to maintain control over messages which could reside anywhere.

(ii) The Degree to Which the Information Seized Can Be Described as Private

[25] As indicated earlier, the reasonable expectation of privacy in electronic messaging can be increased by obtaining an assurance from the recipient of a message that he will not disclose its contents. Mr. Patterson did not request any such assurance from the victim and his reasons for not asking are obvious. Mr. Patterson was representing himself to be a 15 year old gay male when he communicated with the victim. If he had sought an assurance that the communications would remain private, it would almost certainly have raised the suspicions of the victim and likely have ended the messaging. Mr. Patterson hoped that the victim would not tell anyone about his new friend on the Internet. This does not even approach a genuine belief in privacy.

[26] The victim was only 15 years old at the time of these communication. A reasonable person in Mr. Patterson’s position would foresee the possibility that the victim’s parents could be monitoring his Facebook activities. Or that the victim might disclose the conversations to a trusted friend. Or that the victim might mistakenly leave his Facebook page open on the family computer where the communications could be discovered by a parent or sibling. An excited and unsuspecting 15 year old boy would be a very weak link in Mr. Patterson’s privacy chain and Mr. Patterson did nothing to repair that situation.

[27] Mr. Patterson also claims to have had an expectation of privacy with respect to his communications within a Facebook group which was devoted to the exchange of images and stories of child exploitation. There simply cannot be any expectation of privacy in such communications. No reasonable person would expect that communications exchanged between unidentifiable members which can be readily copied and disseminated to an unlimited audience would remain private. It is self-evident that law enforcements officers infiltrate such groups and any reasonable person would be aware of that possibility and assess the expectation of privacy accordingly.

[28] Mr. Patterson had no expectation of privacy when he engaged in chat with the Facebook group. His expectation was of anonymity and that expectation was eliminated by his own indiscretions at the Tim Horton’s restaurant.

(iii) The Extent of the Applicant’s Control over the Place Where the Search Occurred

[29] Evidence was obtained from the victim’s Facebook account and the Facebook servers in Texas. Mr. Patterson had absolutely no control over either of these locations.

[30] The victim voluntarily provided his Facebook password to Det. MacInnis. Assuming for present purposes that the detective “searched” Matthew’s Facebook account when she used that password to download the victim’s communications with Mr. Patterson, there is no merit to the suggestion that Mr. Patterson was entitled to any control over that account. When Mr. Patterson sent his messages without any assurance of confidentiality, he surrendered any claim to ownership of the messages. He could not retract them. He could not prevent them from being digitally shared. Given the workings of Facebook, he could not even ask the recipient to delete them. When the victim received Mr. Patterson’s messages, he did not surrender any ownership or control of his account to Mr. Patterson.

[31] Mr. Patterson similarly had no control over the servers of Facebook which provided American law enforcement officers with the records requested by the Toronto Police Service. A reasonable user of Facebook recognizes that Facebook is an international conglomerate with subsidiaries located all over the world. A reasonable user would not expect that Facebook communications conducted within Canada will necessarily be recorded on servers located in Canada. Mr. Patterson had no physical or legal control over the actions of Facebook employees in Texas who were presented with a valid Order granted by an American court to secure Mr. Patterson’s communications.

Conclusion

[32] Counsel for Mr. Patterson has argued that Mr. Patterson’s Facebook communications are analogous to the text messages which were the subject of the ruling in Marakah and are entitled to the same expectation of privacy. The majority decision in the Supreme Court of Canada anticipated this argument. Justice McLachlin wrote the following at paragraph 55 of the decision:

[55] I conclude that in this case, Mr. Marakah had standing under s. 8 of the Charter. This is not to say, however, that every communication occurring through an electronic medium will attract a reasonable expectation of privacy and hence grant an accused standing to make arguments regarding s. 8 protection. This case does not concern, for example, messages posted on social media, conversations occurring in crowded Internet chat rooms, or comments posted on online message boards. On the facts of this case, Mr. Marakah had a reasonable expectation of privacy in the electronic conversation accessed through Mr. Winchester’s device; different facts may well lead to a different result.

[33] The only element of the test to determine a reasonable expectation of privacy which favours Mr. Patterson’s position is his subjective belief in privacy and even that is equivocal. Every other criteria leads to the conclusion that Mr. Patterson did not have a reasonable expectation of privacy. No reasonable person would expect for an instant that his efforts to lure a child into sexual activity using Facebook should remain private.

[34] The defence application to exclude the Facebook records obtained from the victim and from Facebook in the United States is dismissed at its outset on the basis that the applicant has no reasonable expectation of privacy in the evidence obtained.

Bawden J. Released: July 6, 2018