What is the result when the police seize a cellphone belonging to a known drug dealer and then impersonate him in text messages to lure a supplier into an arrest? This question was recently considered by the Supreme Court of Canada in a case where the police asserted that a warrantless search was justified in exigent circumstances that involved an unfolding sale of heroin laced with fentanyl. But the answer has raised the danger that the rule has been consumed by the exception.

1. Introduction

On December 6, 2024, the Supreme Court of Canada released the opinion in R. v. Campbell affirming the ruling of the Ontario Court of Appeal that the defendant had a reasonable expectation of privacy in his text message communication with a device that was hijacked by the police. (here) He therefore had standing to challenge the warrantless search under s. 8 of the Charter of Rights and Freedoms. However, a four member majority concluded that the search of the text messages was justified under s. 11(7) of the Controlled Drugs and Substances Act which authorizes a peace officer to conduct a search for a controlled substance without a warrant “if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.” (here) In reaching that conclusion, the majority also held that the search was not incidental to the arrest of the drug dealer with whom Mr. Campbell communicated nor was the search an interception of electronic communications under Part VI of the Criminal Code which governs wiretapping.

2. The Search

Acting on information received from informants, members of the Guelph Police Service in Guelph, Ontario, were conducting surveillance of Kyle Gammie who was arrested leaving his residence in a motor vehicle. Mr. Gammie threw two cellphones onto the passenger seat of the vehicle that were seized by the police. One of the cellphones lit up with four text messages that were in plain view on the lock screen. The texts were from a sender named “Dew” who was looking for “1250 for this half”. The police inferred from the phrase “1250 for this half” that the texts involved a drug transaction in progress – likely for heroin laced with fentanyl. Over the next two hours an officer exchanged 35 texts from the lock screen with Dew about the delivery. Dwayne Campbell eventually arrived at Mr. Gammie’s residence where he was arrested. The police seized 14.33 grams of heroin mixed with fentanyl and some cash from Mr. Campbell. The search of Mr. Gammie’s cellphone was not “strictly” related to his arrest or the offence for which he was arrested as required by the standard confirmed in R. v. Fearon. It was a search to collect evidence against another suspected drug trafficker. (here) And the police conduct was not an interception because, absent the use of an intrusive surveillance technology, deception does not amount to an interception. (here)

3. Judicial History

The trial judge held on a pre-trial motion that Mr. Campbell lacked standing to claim the police violated his Charter s. 8 rights by using Mr. Gammie’s phone to communicate with him. His subjective expectation of privacy was not objectively reasonable because the texts “did not reveal any personal or biographical information” about him and involved “mundane comments that […] could have been overheard on a public bus”. The trial judge had also rejected the argument that the police intercepted his electronic communications without a Part VI wiretap authorization. Although the police engaged in deception by impersonating Mr. Gammie, they did not use intrusive technologies to interfere with communications between a sender and a recipient. The trial judge went on to find that the warrantless search was justified by exigent circumstances. Without immediate action “the transaction and drugs were at risk”. The texts showed that Dew was impatient and a telewarrant would arrive too late. The likelihood that fentanyl was involved made it a matter of public safety.

The Ontario Court of Appeal agreed with the trial judge that there was no breach of s. 8 of the Charter but for different reasons. (here) Relying on the opinion of the Supreme Court of Canada in R. v. Marakah, it was held that Mr. Campbell had an objectively reasonable expectation of privacy. (here) The comments in the texts were not “mundane” but about a drug deal, “something one might make efforts to prevent from being overheard on a bus.” However, it was open to the trial judge to find that s. 8 was not violated because the police acted in exigent circumstances. They had to act immediately to protect public safety and it was impracticable to obtain a warrant. The trial judge’s conclusion was not unduly speculative or unreasonable given the police evidence combined with “the notoriously harmful nature of fentanyl”. The Court of Appeal did not consider the wiretap issue because it was not advanced in oral argument. I will, therefore, limit my following comments to the issue of exigent circumstances because I have not considered s. 11(7) of the statute in previous posts to On The Wire.

4. Exigent Circumstances

The dangers of fentanyl were not in dispute. There was evidence given by the police on the pre-trial motion highlighting “the devastation wrought by fentanyl in Ontario”. Guelph had a higher death rate from opioid overdoses than the provincial average with 65% related to fentanyl use. The argument then, in part, was that the trial judge effectively created a “fentanyl exception” to the exigency standard in s. 11(7) of the statute that would be met in every case of suspected trafficking in serious narcotics. If the standard applied in this case was judicially validated, the police would never need a warrant in any case involving a serious drug. Writing for the majority, Justice Mahmud Jamal accepted that “exigent circumstances are extraordinary”. However, the trial judge’s finding was based on both the reasonably suspected presence of fentanyl and the need for the police to act immediately given the impatience Dew expressed in the text messages. Based on these facts, the trial judge was entitled to conclude that it was a “now-or-never situation.”

In a persuasive dissent, Justices Sheilah Martin and Mary Moreau emphasized that the doctrine of exigent circumstances did not justify the search in this case when viewed in light of the doctrine’s “limited purpose and cautious jurisprudential evolution”. The requirements for a warrantless search to be justified by reason of exigent circumstances may be distilled into three elements: (a) the existence of grounds for obtaining a warrant; (b) the existence of exigent circumstances; and, (c) whether those exigent circumstances rendered it impracticable for the police to obtain a warrant. In R. v. Paterson, the main categories of exigency were summarized as loss or destruction of evidence, officer or public safety, and hot pursuit. (here) The “common theme” that emerges from descriptions of exigent circumstances in the case law is one of “urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety or public safety” and “not merely convenience, propitiousness or economy”.

The opinion in Paterson did not create a new test or alter the standards required to establish exigency in established categories. With respect to concerns about evidence, Justice Russell Brown in Paterson had endorsed the standard as “imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed.” This language was mirrored in R. v. Hobeika where Justice David Doherty held “[t]he urgency component of s. 11(7), as described in Paterson, was made out if […] the police have reasonable grounds to believe there was an imminent risk that evidence in the unit would be destroyed before police could obtain and execute a warrant.” (here) In cases related to safety, there are strict temporal constraints as immediate action is needed to address imminent harm to safety. (here) The jurisprudence therefore did not support a conclusion that the potential sale and subsequent use of a harmful drug constituted exigency in the absence of a risk of imminent danger to police or public safety.

5. Conclusion

The critical point made by Justices Martin and Moreau is this. The application of the doctrine of exigent circumstances as a generalized societal safety concern is not sufficient to justify a warrantless search unless it poses an imminent threat. As Justice G. Arthur Martin said in R. v. Nobel, setting that standard too low presents a danger of the exception consuming the general rule. (here) The need claimed by the police to interrupt an impending drug deal of this amount and type of drug did not arise from or result in a fast approaching danger to public safety as suggested by the majority. No imminent safety risk justified warrantless action by the police as any risk of harm could only have been manifested after at least two intervening events. Mr. Campbell would have to sell the heroin “to someone else at another time” and subsequently, the drugs would be sold to others “ultimately reaching users on the street”. The general desire to keep drugs off the street and out of the hands of potential users is not extraordinary and is common to all police investigations involving dangerous substances.