R. v. CAMPBELL, 2024 SCC 42, DECEMBER, 6, 2024.

FACTS:  The police arrested Mr. Kyle Gammie and seized his cellular telephone.  They then responded to incoming text messages and subsequently arrested the accused.  They did not have a search warrant. 

The circumstances were described the by the Supreme Court in the following manner (at paragraphs 3 and 4):

Police lawfully seized a cellphone during a search incident to the arrest of Kyle Gammie, a known drug dealer. Minutes after Mr. Gammie’s arrest, four text messages from a sender named “Dew” lit up the lock screen of the phone, appearing to offer to sell drugs to Mr. Gammie. Based on several factors, including the proposed weight and price, the police believed that the texts likely revealed an in-progress drug transaction for the sale of heroin laced with fentanyl. The police feared that the drugs would be sold elsewhere in the community soon if they did not intervene, and so they began replying to the texts by impersonating Mr. Gammie and encouraging the sender to come to Mr. Gammie’s residence to deliver the drugs.

The appellant, Dwayne Alexander Campbell, claimed that he did not send the first four texts and that another drug dealer named Dew had given him the phone to deliver the drugs. Even so, Mr. Campbell acknowledged that he continued the text message conversation, which he expected would remain private. When Mr. Campbell came to Mr. Gammie’s residence later that day, he was arrested and found in possession of 14.33 grams of heroin laced with fentanyl. He was charged with trafficking and possession offences under the CDSA.

`The accused was convicted at trial.  The trial judge dismissed an application by the accused to exclude the text messages, concluding that the accused did not have a reasonable expectation of privacy as regards the messages.  The accused’s appeal to the Ontario Court of Appeal was dismissed.  The Court of Appeal held that though the accused had a reasonable expectation of privacy in his text message conversation, the search was justified by exigent circumstances pursuant to section 11(7) of the Controlled Drugs and Substances Act.

The accused appealed to the Supreme Court of Canada.  The Supreme Court indicated that the appeal raised “the following questions” (at paragraph 32):

1. Does Mr. Campbell have standing to allege that the police conducted a “search” that violated his rights under s. 8 of the Charter?

2. Was the search not authorized by law, and therefore “unreasonable” under s. 8? In particular, was the search: (a) an “interception” under Part VI of the Criminal Code; (b) not incident to a lawful arrest; or (c) not justified by “exigent circumstances” that made it “impracticable” to obtain a warrant under s. 11(7) of the CDSA?

HELD: The appeal was dismissed. The Supreme Court indicated that it agreed with the Court of Appeal’s conclusion (at paragraphs 7 and 8):

I agree with the Court of Appeal that Mr. Campbell had a reasonable expectation of privacy in his text message conversation with the user of Mr. Gammie’s phone. The police conducted a “search” of that conversation and hence Mr. Campbell has standing to challenge the search under s. 8 of the Charter. Nevertheless, the search was not an “interception” of electronic communications under Part VI of the Criminal Code, nor was it incidental to the lawful arrest of Mr. Gammie.

Even so, the warrantless search of Mr. Campbell’s text message conversation was justified by exigent circumstances under s. 11(7) of the CDSA. The trial judge found that the police reasonably believed that they faced an urgent situation calling for their immediate intervention to protect public safety based on two considerations. First, the police reasonably believed that the drugs being sold were heroin laced with fentanyl, an especially deadly mix that has killed many vulnerable individuals struggling with drug abuse across the country. Second, the police also reasonably believed that, 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. These findings cumulatively established the exigent circumstances in this case and made it impracticable to obtain a warrant. The trial judge was entitled to make these findings based on the evidence before him and correctly concluded that they met the legal standard for a warrantless search under s. 11(7) of the CDSA. Accordingly, I would dismiss the appeal.

Does Mr. Campbell have standing to allege that the police conducted a “search” that violated his rights under s. 8 of the Charter?

The Supreme Court indicated that section 8 of the Charter “is engaged where a person has a ‘reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access’…A claimant seeking standing to argue that their rights under s. 8 were infringed must show that they subjectively expected the subject matter of the search would remain private, and that their expectation was objectively reasonable having regard to ‘the totality of the circumstances’…In making this evaluation, courts are guided by four lines of inquiry: (1) the subject matter of the alleged search; (2) whether the claimant had a direct interest in the subject matter; (3) whether the claimant had a subjective expectation of privacy in the subject matter; and (4) whether the claimant’s subjective expectation of privacy was objectively reasonable” (at paragraph 39).

The Court also indicated that “the relevant question under s. 8 is not whether the individual reasonably expected the subject matter of the search to remain private from just anybody; what matters is whether they reasonably expected it would remain private from state intrusion” (at paragraph 68).

The Supreme Court concluded that “Mr. Campbell had a reasonable expectation of privacy from state intrusion into his text message conversation… Mr. Campbell had an objectively reasonable expectation of privacy in his text message conversation with who he thought was Mr. Gammie. The police intruded upon Mr. Campbell’s reasonable expectation of privacy by pretending to be Mr. Gammie to continue that conversation. As a result, the police conducted a ‘search’ under s. 8, which Mr. Campbell has standing to challenge” (at paragraphs 68 and 79).

Was the search not authorized by law, and therefore “unreasonable” under s. 8? In particular, was the search: (a) an “interception” under Part VI of the Criminal Code; (b) not incident to a lawful arrest; or (c) not justified by “exigent circumstances” that made it “impracticable” to obtain a warrant under s. 11(7) of the CDSA?

The Supreme Court indicated that if the Crown seeks to rely upon exigent circumstances to justify a warrantless search, it must “establish the reasonable probability of the claimed exigency, based on the experience and expertise of the police and the relevant facts before them; it does not require the Crown to establish the exigency on the balance of probabilities…The Crown must show that the officers’ reasonable belief in the exigency was ‘objectively grounded in the circumstances of the case’…The subjective views of the police must have been objectively reasonable” (at paragraph 114).

The Court concluded that it saw “no basis to impugn the trial judge’s finding that the situation required immediate police action because it involved an impatient drug dealer who expected to sell his drugs imminently, either to Mr. Gammie or to somebody else. The police had interrupted Dew’s planned sale to Mr. Gammie and were faced with Dew’s expressed impatience and desire not to drive around with the drugs. Had the police not acted immediately, the drugs would have been trafficked elsewhere in the community imminently… In my view, therefore, the trial judge correctly found that the legal standard for exigent circumstances was met because the police faced an urgent situation calling for immediate police action to protect public safety” (at paragraphs 121 and 139).