Clearing a path for ‘exigent circumstances’

The Supreme Court of Canada has ruled that police were justified in impersonating a drug dealer on a phone seized during an arrest in order to orchestrate the arrest of another suspected dealer who was planning to deliver fentanyl-laced heroin.

In a 6-3 decision, the Court said the warrantless search was justified by “exigent circumstances” that made it “impracticable” to obtain a warrant under s. 11(7) of the Controlled Drugs and Substances Act (“CDSA”).

The case dates back to June of 2017 in Guelph, when, during the arrest of Kyle Gammie, a known drug dealer, his phone lit up with text messages from a supplier. From the locked screen, Guelph police communicated with the supplier, appellant Dwayne Campbell, and arranged for him to meet them at an address to deliver the drugs, at which point they arrested him. The rest of the phone’s contents were never accessed.

Campbell argued that his Section 8 Charter rights had been violated, an argument the trial judge rejected, citing the exigent circumstances provision.  Arguments that this constituted an intercepted electronic communication under Part VI of the Criminal Code, as well as those made under Section 24(2) of the Charter, were also rejected at trial. The Ontario Court of Appeal later found that Campbell’s Section 8 rights had been violated but were excepted under the CSDA 11(7) argument, which the majority of the Supreme Court upheld.

“The police conducted a ‘search’ of that conversation and hence Mr. Campbell has standing to challenge the search under s. 8 of the Charter,” Justice Mahmud Jamal wrote for the majority.

“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.”

Jamal said the exigent circumstances were justified as the police reasonably believed they faced an urgent situation that required immediate intervention to protect public safety, as that particular drug mix was “especially deadly.”

“These findings cumulatively established the exigent circumstances in this case and made it impracticable to obtain a warrant,” he wrote.“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.”

The full breakdown of the decision was more complex, with a four-justice majority of Justices Jamal, Wagner, Kasirer and O’Bonsawin being joined by Justice Malcolm Rowe, who agreed with their analysis with additional remarks of his own in relation to the dissent. Justice Suzanne Côté wrote separate reasons, arguing the trial judge was correct in finding Section 8 was not violated.

The dissent, co-written by Justices Martin and Moreau, with Justice Karakatsanis concurring, argued that while they agreed there was a reasonable expectation of privacy, the test for exigent circumstances was not met, which brings the administration of justice into disrepute.

“The technique of hijacking an existing identity in such circumstances creates a particularly insidious invasion by police,” Martin and Moreau wrote.

“It is not a technique our Court had previously considered in the context of s.8 of the Charter and it is not analogous to an undercover officer operating under the auspice of a fictional persona.”

The justices also rejected that there was an imminent danger in the drug transaction that required the warrantless search.

“Stretching the exigent circumstances doctrine beyond what has previously, and can credibly, qualify as imminent harm opens the door to warrantless searches almost anytime police have an opportunity to seize drugs or whenever a potentially serious offence is being investigated,” Martin and Moreau wrote.

“The result will be to authorize invasive and extensive police conduct outside of those rare instances in which the harm to public safety is so imminent and immediate, a prima facie unreasonable warrantless search is judged to be reasonable.”

Kyla Lee of Acumen Law in Vancouver, and the past chair of the Canadian Bar Association’s criminal justice section, says the decision is disappointing because it will give licence to police mischief in similar cases.

“The logic of there being a drug transaction happening in the moment I understand, but I can see this being expanded to circumstances including intimate images or child pornography, where it’s no longer the urgency that exists with a drug transaction that if you don’t respond, someone will find their drugs elsewhere,” she says.

“I can see courts relying on this judgment that that’s appropriate conduct.”

There is a slippery slope when it comes to personal devices when police conduct arrests. Lee says this broadens police authority to interact with someone’s device during arrest under the guise of exigent circumstances.

“There is also a problem in the sense that when the police have authority, they don’t necessarily understand the nuances of the test for exigent circumstances, and they all think that everything is more urgent than it is.”

Speaking on behalf of the Criminal Lawyers’ Association, Lindsay Board, partner at Daniel Brown Law LLP in Toronto, notes that the exigent circumstances doctrine was developed at a time when we were not necessarily dealing with computers and smartphones.

“It was a situation where there was a very urgent need for immediate police action to preserve evidence, for officer safety, for public safety,” she says, pointing to an instance where police are called to a home they can’t enter without a warrant, but if they hear a cry for help from inside, that becomes an urgent circumstance.

“It might be arguable that this is unique to the circumstances of the case, but if I were the police or the Crown, I would view this as an expansion of that doctrine because it’s not a direct link to an urgent situation,” Board says.

She suspects that if the police do take this decision as an expansion of the exigent circumstances doctrine to justify taking cell phones to intercept drug deals, defence lawyers will vigorously challenge that assertion of urgency.

Stephen Aylward, a partner at Stockwoods LLP in Toronto, argued on behalf of the Canadian Civil Liberties Association. He says that while the decision was a victory for the reasonable expectation of privacy, the arguments on the issue of content neutrality were put off.

The importance of content neutrality in evaluating privacy rights is that you don’t simply view the exchanges as being between drug dealers or other criminals but from the reasonable expectation that an average Canadian would have in their communications.

“If you start from the premise of what is the reasonable expectation of a drug dealer in their text messages, you’re begging the question and it’s not going to provide any meaningful protection for privacy rights,” Aylward says.

“There is a strong endorsement in principle of content neutrality, but they do leave open the Mills exception, which, depending on how broad that exception it is, you could run a truck through it. It has essentially left a lot of issues unresolved.”