SCC case to clarify reasonable expectation of privacy attached to cell phone messages

A case heard at the Supreme Court of Canada on Thursday will clarify the reasonable expectation of privacy attached to a person’s cell phone text messages and the common law doctrine of exigent circumstances.

In Dwayne Alexander Campbell v. His Majesty the King, the appellant appealed his convictions for the possession and trafficking of fentanyl and heroin. The police had used another drug-trafficking suspect’s cell phone to deceptively arrange a drug purchase from the appellant. The police had lawfully taken the cell phone from the other suspect and responded to text messages the appellant sent the phone while it was in their possession. However, the police did not have a warrant to access the text messages or carry out the sting.

While the Ontario Court of Appeal said the appellant had a reasonable expectation of privacy in these electronic communications, the court found that the exigent circumstances doctrine justified the police’s action. Exigent circumstances allow the police to intrude on a suspect’s Charter-protected privacy rights if there is an imminent threat to public safety. The police reasoned that preventing the fentanyl from being dealt to someone else was necessary to preserve public safety.

“This case is essentially going to confirm to what extent people will have a reasonable expectation of privacy with respect to their electronic communication,” says Veronica Martisius, staff counsel at the BC Civil Liberties Association (BCCLA), which is intervening in the case.

The BCCLA takes no position on the outcome of the case but has intervened to advocate that the court ensure that police respect the boundaries of exigent circumstances. Without prior judicial authorization, the BCCLA argued that police must ensure their “intrusions into private spaces” are accountable to Charter standards and that the urgency to which they are responding involves an “imminent threat to public safety that demands a contemporaneous state response.” The BCCLA argued that the police are not entitled to “create or maintain an urgent circumstance to justify acting without a warrant.” They also argue that, while the nature of fentanyl will impact the gravity of a public safety risk, the risk still must be imminent for the police to act without a warrant. “In sum, the BCCLA advocates in support of shielding the doctrine of exigent circumstances from police abuse,” said the BCCLA’s factum.

The seized cell phone had displayed incoming text messages on the screen while it was in the police’s possession. Police said that the messages indicated someone intended to transact in heroin laced with fentanyl. They said that if they did not intervene, it would end up on the street and pose a public safety issue. They pretended to be the cell phone’s owner and arranged a meet, arresting the appellant when he showed up with the heroin.

The appellant moved to exclude the evidence against him. He argued that the police violated his rights under s. 8 of the Charter, which protects against unreasonable search and seizure when they accessed the text messages and communicated with him. The trial judge rejected the argument and convicted him.

The Court of Appeal found that the police’s unconstitutional intrusion into a private conversation and deception of the appellant were justified because they had established the presence of exigent circumstances. The court said R. v. Paterson, 2017 SCC 15 was the leading case on the subject. In that case, to proceed without a warrant, the police were required to demonstrate there was urgency “calling for immediate police action to preserve evidence, officer safety or public safety,” and that the time to obtain a warrant “would pose a serious risk to those imperatives.”

The appeal court found it was open for the trial judge to rule that an urgent threat to public safety justified the police’s actions. If the drug purchase they facilitated – which was already in progress before they commandeered the phone – had not transpired, the appellant would have sold the fentanyl-laced heroin to someone else. Given the “notoriously harmful nature of fentanyl,” the trial judge said these amounted to exigent circumstances. The judge’s finding “was not unduly speculative, nor was it unreasonable,” said the Court of Appeal.