Appeal Watch: Is a closing window to address a future safety risk urgent? R v Campbell

The Ontario Court of Appeal (“ONCA”) applied the rapidly developing law surrounding the expectation of privacy in cell phones and police operations in R v Campbell, 2022 ONCA 666 [Campbell, ONCA]. The ONCA affirmed that people have a reasonable expectation of privacy in their text messages when the police legally seize any cell phone containing messages from them, even when the messages are visible on a lock screen. Moreover, the court held that the police were justified when they impersonated the intended recipient to set up a sting to catch a dealer of fentanyl-laced drugs. Exigent circumstances existed because fentanyl posed a danger to the public, the situation was urgent, and getting a warrant was impracticable because the chance to arrange the sting was quickly slipping away.

The Supreme Court of Canada (“SCC”) will soon explore these reasons in March. The appellant is looking to show why the SCC should not consider the potential for fentanyl to hit the streets to be an urgent public safety risk when the time it hits the streets is not defined. The Crown is looking to overturn the ONCA’s ruling on a reasonable expectation of privacy in the text messages. They argue that the reasonable expectation of privacy is a context-specific analysis, so the trial judge was not in error when he found no reasonable expectation of privacy in the case’s unique circumstances.

Background

The police lawfully seized a cellphone from the known drug dealer Kyle Gammie (“Gammie”) incident to his arrest. The cellphone subsequently received texts that were visible on its locked screen, indicating that someone was arranging to sell heroin, likely laced with fentanyl, to Gammie. The transaction was in progress as the seller was looking to meet with Gammie. The police impersonated Gammie and arranged a meeting with the accused via text using the phone without unlocking the phone. Dwayne Alexander Campbell (“the appellant”) arrived at the meeting point and ran after seeing the police. He was apprehended and found in possession of fentanyl-laced heroin. The police seized his cellphone and took pictures of the text exchange from the phone, but Mr. Campbell claimed not to be the sender of the original messages since he was provided the phone only to facilitate the delivery. He was arrested and prosecuted.

At trial, Mr. Campbell argued that the text messages and evidence from that exchange should be excluded because the police had breached his Canadian Charter of Rights and Freedoms [Charter] s. 8 rights against unlawful search and seizure. He sought to exclude evidence obtained by searching the messages, impersonating Gammie and taking pictures of Mr. Campbell’s phone. The trial judge found no reasonable expectation of privacy in the cell phone messages, so there was no breach of Charter rights. Alternatively, the trial judge found that the circumstances were urgent and dire enough to be “exigent” for the exigent circumstance exception because of the risk fentanyl poses to the public, and the seller would likely have offloaded the drugs elsewhere if Gammie did not respond. Because the trial judge did not find a breach of s. 8, he did not need to consider s. 24(2), which deals with the admission of evidence in circumstances where Charter rights have been breached.

Issues on Appeal

1.     Did Mr. Campbell have a reasonable expectation of privacy in his text messages to Gammie?
2.     If so, were there exigent circumstances that justified the police proceeding without a warrant?
3.     If no to questions 1 and 2, could the evidence be admitted under s. 24(2) of the Charter?

Decision

The Charter’s s. 8 jurisprudence requires police officers to get a warrant if they want to search anything where a person has a reasonable expectation of privacy. However, that line can be crossed in exigent circumstances. Exigent circumstances are situations that require the police to act urgently for the safety of the people at the scene or the broader public’s safety or to stop the destruction of evidence. The ONCA decision overturned the trial judge partly by finding Mr. Campbell had a reasonable expectation of privacy in the text messages, so the police breached s. 8. However, the court held that this was justified because the circumstances were exigent. If the police did not act, there was a risk that fentanyl in possession of whoever messaged Gammie would end up on the street. Fentanyl is extremely dangerous, so it poses a threat to the lives of the public. Since the transaction was in progress, the situation was urgent and obtaining a warrant was impracticable.

The ONCA did not need to consider s. 24(2) because they found the evidence admissible. If the SCC disagrees and finds no exigent circumstances, they must turn their attention to a s. 24(2) analysis of the facts.

The SCC granted Mr. Campbell leave to appeal.

The Crown does not Think that Mr. Campbell Reasonably Expected Privacy

The Crown will argue on appeal against Mr. Campbell’s reasonable expectation of privacy in the text messages in the phone while defending the ONCA’s finding on exigent circumstances. They contend that the seminal decision in R v Marakah 2017 SCC 59 [Marakah] on reasonable expectation of privacy was misapplied. Marakah changed the dynamic for assessing reasonable expectations of privacy but kept the need to evaluate the totality of circumstances. The decision in Marakah was treated as if it established that all electronic messages should be presumed to have a reasonable expectation of privacy subject to narrow exceptions. However, it was not that broad according the Crown. Therefore, the reliance on R v Mills, 2019 SCC 22 [Mills] should not be to treat them as narrow exceptions but as applied contextual analysis in agreement with Marakah and Mills. The Crown makes a compelling argument that, if successful, would make analysis of the exigent circumstances irrelevant. The reasons in Marakah are steeped in the need for context, and the Crown likely has a strong argument here that elements such as the phone remaining unlocked and Mr. Campbell claiming to have been given the phone by a third party reduced any expectation of privacy people usually have in their text messages.

The Appellant Argues that the Safety Risk must be Urgent, not the Opportunity to Prevent it

The appellant is content to allow the ONCA’s ruling on a reasonable expectation of privacy. To alter the decision, they argue that an expectation that dangerous drugs could flood the streets at some nondescript time in the future is too loose to be exigent. In their view, without evidence that the drugs will enter the streets and that there is some evidence or reason to believe the drugs will make it onto the roads imminently, a warrant should be necessary for a search. If the bar is so low that no imminency needs to be proven, the police can claim exigent circumstances in countless cases, and the floodgates will be open to a wide swath of privacy breaches. The ONCA characterized the police officer’s belief in exigent circumstances not as a belief that the drugs would enter the street imminently but that their opportunity to intercept would close if they did not respond urgently. They affirm the trial judge’s finding of exigent circumstances by stating that a search without a warrant may be justified where there is an imminent threat to the police or public safety (Campbell, ONCA, para 80. The appellant conceded that there was a public safety threat. The problem is that the danger was not imminent but was nondescript. Without Gammie, no drug transaction could be completed. Therefore, the trial judge relied on an inference that if this drug transaction could not be completed, the dealer would turn to sell the drugs to another party “at another time.” While the timeliness needed to respond to the opportunity might render obtaining a telewarrant impracticable, the urgency is a required component on its own. Mr. Campbell argues that the risk to the public itself must be imminent. Suppose the Crown fails to rebut the reasonable expectation of privacy. Given that fentanyl is in the hands of a supplier, the public safety threat does seem inevitable if not urgently dealt with, even if not on the cusp of causing damage. However, this is still a distinction that ONCA did not address clearly in its reasons, and the SCC may want to address it if they do not find a reasonable expectation of privacy.

Prediction and Conclusion

I predict that the SCC will side with the Crown on the contextual factors weighing towards no expectation of privacy in these specific circumstances, making the question about exigent circumstances irrelevant. However, if the SCC gives reasons on exigent circumstances, I believe the SCC will find that the public safety risk was imminent even if the damage caused was not imminent, because of the inevitability of the damage if the police did not jump on the opportunity. Exigent circumstances allow courts to hold police officers to a high standard while enabling them to be free of certain restraints. If the ability to be free of those checks and balances is too unrestrained, the right to privacy won’t mean anything. We want our police to be effective, and the SCC has generally kept the exceptions narrow, but this can reasonably fit in that narrow exception.

This article was edited by Ariel Montana.