Guelph, Ont., police acted lawfully when they seized a drug suspect’s phone and exchanged text messages with another dealer without first getting a warrant, the Supreme Court has ruled.
In a split decision released Friday morning, the Supreme Court upheld the conviction of Dwayne Alexander Campbell, who was arrested in June 2017 on suspicions of dealing fentanyl-laced heroin.
But Campbell was not the Guelph cops’ target that day. Instead, while arresting another alleged drug dealer, the police seized a cellphone that began receiving text messages that suggested another dealer was looking to sell their suspect heroin.
Without first getting a warrant, the cops began texting back and impersonating the man they already had in custody. When Campbell showed up at the first suspect’s house later that day, he was arrested while holding 14 grams of heroin laced with the deadly synthetic opioid.
Crown attorneys argued the police actions were justified, given fentanyl-imbued heroin hitting the street constituted an emergency or “exigent” situation. Taking the time to get a warrant in the context meant the drugs may have hit the street, they argued.
A majority of Supreme Court Justices agreed.
“The police reasonably believed that they faced an urgent situation involving a suspected drug sale calling for immediate police action to prevent the drugs from being trafficked in the community imminently. The police also had reasonable and probable grounds to believe the transaction specifically involved heroin laced with fentanyl, which posed a grave risk to public safety,” the majority decision read.
“Although the police had grounds to obtain a warrant, it was impracticable to obtain one … (as) it would likely arrive too late to complete the transaction.”
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Three justices dissented with the court’s decision, arguing that police impersonating someone in a text message exchange is highly intrusive, calling it “hijacking an existing identity” that exploits “an existing relationship between two private actors, which has the potential to reveal to police deeply personal information.”
Police interception of text messages or other digital communications typically require prior judicial authorization, given the intrusive nature reading a target’s private messages.
Under the Charter of Rights and Freedoms, Canadians enjoy a reasonable expectation of privacy – including in their electronic communications – and are protected from unreasonable search and seizure at the hands of police.
In exceptional circumstances, law enforcement officials can take actions that normally require a warrant without first getting a judge to sign off. These are known as “exigent” circumstances – think asking telecom companies for cellphone data if it is believed a person is in imminent and serious danger.
Even though they agreed the Guelph police actions were justified, the majority opinion noted that law enforcement officials “cannot peruse the contents of a phone at liberty and without any limits.”
“However, their actions may be appropriate if they limit and circumscribe the scope of their conduct to the investigation before them,” the majority ruled.
“In the instant case, the police were at liberty to view and respond to the four text messages from (Campbell) that they passively received and observed on (their suspect’s) lawfully seized phone.”
In the dissenting opinion, Justices argued that police are able to seize cellphones and search text messages – so long as they get a warrant, first. Furthermore, the facts of this specific case “do not establish an imminent safety risk justifying warrantless police action, the justices argued.
“In contrast to a phone conversation, where the police’s ability to impersonate a person known to the caller is limited, within a text conversation, the potential for police to impersonate the recipient and deceive the sender is limited only by their opportunities to do so and the strictures of the law,” the dissenting opinion read.
“It would gravely impact one’s trust in general, and one’s trust in the state, if the last text message received from an acquaintance or family member was, instead, from the police in disguise.”
“Recognizing that in a free and democratic society the privacy claim in personal text message conversations between individuals known to one another must be beyond state intrusion … does not thwart the ability of police to investigate crimes and uncover evidence through searches. It simply requires the police to have lawful authority to do so.”
In a statement Friday afternoon, the British Columbia Civil Liberties Association (BCCLA) said they were encouraged the Supreme Court’s majority opinion affirmed individuals’ reasonable expectations of privacy when it came to text messages, but were concerned that the court “widened the boundaries” of what police can call an emergency.
“Warrantless searches should only be conducted when there is a bona fide emergency marked by a significant degree of immediacy that overrides an individual’s privacy rights and the state’s obligation to apply for a warrant,” the organization said.
“The doctrine does not permit the police to create or maintain an urgent circumstance to skirt prior judicial authorization nor does it contemplate the police participating in maintaining urgency for investigative purposes.”
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