The high court dismissed the defendant's argument that the police violated his Charter rights
An Ontario man had a reasonable expectation of privacy for his text messages about a drug transaction, but police officers’ belief that he was selling drugs laced with fentanyl authorized them to search the messages without a warrant, the Supreme Court of Canada ruled in a 6-3 decision on Friday.
The police believed “if they did not intervene immediately, these drugs would be sold imminently to vulnerable individuals in the community and hence posed a grave risk to public safety,” the majority said.
“These findings cumulatively established the exigent circumstances in this case and made it impracticable to obtain a warrant.”
Justice Mahmud Jamal authored the decision for the majority. Justices Malcolm Rowe and Suzanne Côté wrote separate, concurring opinions, while Justices Sheilah Martin, Mary Moreau, and Andromache Karakatsanis dissented.
In 2017, Guelph police lawfully seized a cell phone while arresting Kyle Gammie, a known drug dealer. Minutes after the arrest, the phone received four text messages from a sender named Dew, who seemed to be offering to sell drugs to Gammie.
Based on details mentioned in the texts, including a proposed weight and price, the police believed that the offered goods included heroin laced with fentanyl. The police believed that if they did not intervene quickly, the drugs would end up being sold elsewhere in the community, so they began replying to the texts by impersonating Gammie and asking the sender to deliver the drugs to Gammie’s home.
When Dwayne Alexander Campbell arrived that evening, the police arrested him and found he possessed heroin laced with fentanyl. Campbell was charged with drug trafficking and possession offences. However, he claimed he was not the person who sent the first four text messages police saw on Gammie’s phone and that Dew, another drug dealer, had given him the phone to arrange the transaction with Gammie.
At trial, Campbell asked the court to exclude the text message exchange from evidence. He argued that the police’s strategy of texting him from Gammie’s phone constituted a search that breached his rights under s. 8 of the Canadian Charter of Rights and Freedoms, which guarantees protection against unreasonable searches and seizures.
The trial judge rejected Campbell’s argument, finding Campbell did not have a reasonable expectation of privacy regarding his text messages, so the police did not conduct a “search” under s. 8 of the Charter. Thus, Campbell lacked standing to argue that his s. 8 rights had been violated.
The judge added that even if Campbell had standing to make his argument, the police’s warrantless search would have been justified under the Controlled Drugs and Substances Act (CDSA), which allows police officers to conduct such searches if exigent circumstances make it impracticable to obtain a warrant beforehand. The judge convicted Campbell of trafficking and possession and sentenced him to prison.
Campbell appealed. While the Ontario Court of Appeal agreed with Campbell that he had a reasonable expectation of privacy regarding his text message exchange, the court concluded that the police’s warrantless search was justified by exigent circumstances under the CDSA. Campbell appealed again.
The majority opinion
The SCC majority dismissed his appeal. The majority noted that when a claimant seeks standing to argue that their s. 8 rights were violated, they must show that they subjectively expected the subject matter of the search to stay private and that their expectation was objectively reasonable.
The majority found that Campbell met both criteria. The police intervened in his text message conversation – a medium “in which a reasonable person would ordinarily expect the utmost privacy,” the majority said, adding that the police also used an “especially intrusive investigative technique” when they joined a conversation already underway.
However, the police were justified in their conduct under s. 11(7) of the CDSA, the majority said. While the police could have obtained a warrant before intervening in the text exchange, it likely would have arrived too late for the police to prevent the drugs from being circulated.
Thus, while Campbell had standing to bring a s. 8 claim, the police did not infringe on his s. 8 rights. The majority said it was, therefore, unnecessary to address the question of whether the text exchange should have been excluded as evidence in Campbell’s trial.
The concurring opinions
In his concurring opinion, Rowe wrote that he fully agreed with the majority. However, Rowe disagreed with the dissenting justices’ conclusion that the police did not face an imminent risk to public safety since Dew and Campbell did not necessarily have another buyer lined up for the drugs.
“My colleagues implicitly elevate the evidentiary requirements for exigent circumstances,” Rowe wrote. He added, “Respectfully, the Crown did not have to establish that Dew had another transaction lined up if the transaction with Mr. Gammie fell through.”
In her concurring opinion, Côté said that while she agreed with the majority’s results, she disagreed that the police’s conduct qualified as a “search” for the purposes of s. 8 of the Charter. She also rejected the finding that Campbell had an objectively reasonable expectation of privacy.
“In my view, suggesting that the police should have simply closed their eyes to the first four text messages and not investigated after having lawful possession of the phone would cut against the ‘essential role of the police . . . to investigate crimes,’” she wrote.
The dissent
Authored by Martin and Moreau, the dissent found that Campbell’s appeal should be allowed, his convictions should be set aside, and acquittals should be entered. The justices said the police’s conduct breached Campbell’s s. 8 rights and did not meet the exigent circumstances criteria under the CDSA.
The potential sale and use of a harmful drug cannot be defined as exigent circumstances, and doing so opens the door for invasive and warrantless police searches, the justices wrote.
“The circumstances of a potential, sometime subsequent sale of a small quantity of a dangerous drug that would likely later reach users on the street did not reach the threshold of an imminent safety risk,” the justices wrote. “Since there were no exigent circumstances here, it follows that the practicable option was for the police to obtain a warrant to search Mr. Gammie’s phone or pursue other investigative steps."
Admitting the text messages into evidence would, therefore, be inappropriate, the justices said.
Stephen Whitzman, an associate with Hicks Adams who represented Campbell, told Canadian Lawyer Friday that the majority’s decision reaffirms existing case law, particularly the SCC’s 2017 decision in R. v. Marakah, “on reasonable expectation of privacy in text messages that are recovered by the police from the recipient's cell phone.”
While Whitzman says the decision was disappointing, it also has implications for other cases involving drug investigations.
“It’s just a lesson to the defence bar that in similar circumstances, especially if it's involving a serious drug… they have to mount a strong attack on the officers’ evidence that they thought that urgent police action was required and that there was an imminent danger,” he says.
Matthew Nathanson, who runs a criminal defence firm and represented the Independent Criminal Defence Advocacy Society, one of the intervenors in the case, said in a statement, “While the court split over interpretation of the facts, it reaffirmed key foundational principles regarding privacy in cell phone messages and limits on searches incident to arrest and the exigent circumstances doctrine.”
The Public Prosecution Service of Canada did not respond to a request for comment.
