Background
In June 2017, members of the Guelph Police Service Drug Unit executed a search warrant at the residence of a known drug dealer, G, and arrested him trying to leave in a car. During the arrest, G threw two cellphones onto the passenger seat. One of the officers lawfully seized the cellphones incident to arrest. A few minutes later, one of the phones lit up with the following messages from the accused, Dwayne Campbell (using the name “Dew”), which were visible in plain view from the lock screen and appeared to solicit a drug deal:
[4:31:23 p.m.] Family I need 1250 for this half tho
[4:50:26 p.m.] Yooo
[4:50:48 p.m.] What you gonna need that cause I don’t want to drive around with it
[4:50:59 p.m.] What time you gonna need it
“G” responded, asking the accused to deliver the drugs to his residence. Little did Campbell know, the responses he received were from police, impersonating G in order to stop the drugs from being trafficked in the community. The police did not have a warrant to search the text messages.
Sgt. Blair, an experienced drug investigator, believed the texts involved a drug transaction in progress. He inferred that the phrase “1250 for this half” was consistent with a cheap price for half an ounce of heroin, suggesting it was laced with fentanyl. Sgt. Blair was also aware that 75% of the heroin seized by Guelph police contained fentanyl and was concerned about its distribution in the community. Two other officers also suspected the drugs involved heroin with fentanyl, based on the price and confidential informant information.
Sgt. Blair believed the accused had no reasonable expectation of privacy in the texts sent to G’s phone and instructed an officer to respond to arrange a drug delivery. Over the next 2 hours, 35 texts were exchanged directly from the lock screen, without examining any other information on the cellphone.
The accused arrived at the agreed-upon location shortly after 7:00 p.m. and was arrested. Police seized his cellphone and photographed the screen to capture the text message conversation, and subsequently obtained warrants to search and download the data from the two phones.
The accused argued that his section 8 Charter rights against unlawful search and seizure were infringed when police took control of another drug dealer’s phone and facilitated a transaction through text.
Decisions
The trial judge found that the accused did not have a reasonable expectation of privacy in the text messages, and therefore lacked standing to argue section 8 of the Charter. Even if the accused had standing, the trial judge found that the warrantless search would have been justified by the exigent circumstances exception in section 11(7) of the Controlled Drugs and Substances Act, which provides authority for a peace officer to conduct a warrantless search “if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impractical to obtain one”.
The accused was convicted of possessing 14.33 grams of heroin mixed with fentanyl for the purpose of trafficking and sentenced to six years.
On appeal, the Ontario Court of Appeal accepted that the accused had a reasonable expectation of privacy in his text message conversations and had standing to argue section 8, but concluded the search was justified by exigent circumstances. The accused appealed to the Supreme Court of Canada.
In a split 6:3 decision, the SCC held that the appeal should be dismissed. Justice Cote found that the accused did not have a reasonable expectation of privacy in the text messages as it did not reveal any information that implicated the biographical core of the accused, nor were they likely to reveal any, given the nature of the investigation.
The remainder of the majority held that the accused did have a reasonable expectation of privacy in his text message conversation with the user of G’s phone but agreed with the trial judge that the search was justified by exigent circumstances that made it impracticable to obtain a warrant.
Reasonable Expectation of Privacy
Whether an individual has a reasonable expectation of privacy in a text message conversation is always case specific, depending on four factors: (1) the subject matter of the search; (2) whether the accused has a direct interest in that subject matter; (3) whether the accused had a subjective expectation of privacy in the subject matter, and (4) whether that subjective expectation of privacy was objectively reasonable.
The Crown argued that the police impersonation technique was akin to an undercover police investigation. This was rejected by the majority, differentiating between speaking to a caller and creating a permanent record by way of text messaging. The “recording of a communication by the police is a search and seizure for constitutional purposes”, as opposed to an unrecorded conversation with an informer, which is not.
The majority held that the police had conducted a “search” for the purposes of section 8: the accused had an objectively reasonable expectation of privacy in his text message conversation with someone he thought was G, and that police intruded on that privacy by pretending to be G.
Did the Police Infringe Section 8?
In determining whether police infringed section 8 of the Charter, the Crown argued that the impersonation technique was a lawful search incident to the arrest of G in order to locate and arrest another suspect after becoming aware of an impending drug transaction. This argument was rejected as the search of G’s phone was not strictly incidental to G’s arrest or for the purpose of collecting evidence against another perpetrator of the offence for which G was arrested.
The accused argued that the text messages were an “interception” under the wiretapping regime in Part VI of the Criminal Code, which was also rejected as the technique did not involve the use of a device employing an intrusive surveillance technology.
- Exigent Circumstances
There are two requirements under section 11(7) of the CDSA:
(1) exigent circumstances, which “denote not merely convenience, propitiousness or economy, but rather urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety or public safety”, and
(2) the conditions for obtaining a warrant existed, but those exigent circumstances “rendered it ‘impracticable’ to obtain a warrant”, meaning that it was “impossible in practice or unmanageable to obtain a warrant”. Thus, the “exigent circumstances must be shown to cause impracticability”.
In other words, police must have reasonable and probable grounds, rather than mere reasonable suspicion, for the exigency in section 11(7) to apply. In this case, the accused did not seriously dispute the fact that police had grounds to obtain a warrant.
Ultimately, the majority found that the warrantless search of the accused’s text message conversation was justified by exigent circumstances on two factors:
- the police reasonably believed that the drugs being sold were an especially deadly mix of heroin laced with fentanyl, which has killed many vulnerable individuals struggling with drug abuse across the country; and
- the police reasonably believed that the drugs would be sold imminently to vulnerable people in the community if they did not intervene immediately, and therefore posed a grave risk to public safety.
Dissent
The dissenting Justices agreed that the accused had a reasonable expectation of privacy but found that exigent circumstances did not exist and the search could not be justified. More specifically, the dissent determined these circumstances fell “well short of the requirement of an imminent risk to an individual or group” and that the “jurisprudence does not support a conclusion that the potential sale and subsequent use of a harmful drug constitutes exigency in the absence of a risk of imminent danger to police or public safety”. They described the “technique of hijacking an existing identity” as creating a “particularly insidious invasion by police” and criticized the requirement of impracticability as receiving little consideration in this case.
Conclusion
In R v. Campbell, the police technique of impersonating another individual using their seized cellphone to facilitate a drug transaction was upheld by the Supreme Court of Canada. The access and use of the accused’s text messages was determined to be a search, subject to section 8 Charter scrutiny. The difference in this case was the Justices’ interpretation of whether exigent circumstances existed. The dissent focused on the lack of an imminent risk while the officer’s reasonable belief that the drugs would be distributed imminently satisfied the majority.
Campbell is a reminder for officers that there is no definitive rule for text messages carrying a reasonable expectation of privacy – which is still a case specific determination, and that the exigent circumstances exception for warrantless searches done under the CDSA must be used sparingly, where (1) there are reasonable and probable grounds, (2) there is true urgency to preserve officer safety, public safety, and/or evidence, and (3) the circumstances make it impracticable or impossible to obtain a warrant in time. General or speculative concerns about losing evidence by delaying a search warrant will not meet the exigency threshold and risks exclusion of evidence.
Subscribe to RSS Feed