The most important court in Canada may soon consider once more how police can get cellphone information without a warrant.
This situation may have widespread effects on how police deal with getting cellphone information in urgent situations, and on the privacy rights of Canadians.
The situation involves the arrest of a drug dealer, Dwayne Alexander Campbell, by Guelph police in June 2017. However, Campbell wasn't the main target.
Police got a warrant to search the house of another suspected drug dealer, Kyle Gammie. When they arrested Gammie, they found cocaine and cash, along with two cellphones. While collecting evidence at the house, one of the cellphones received text messages from someone named “Dew,” another suspected drug dealer.
According to records from the Ontario Court of Appeal, the text messages on the phone’s lock screen showed that “Family I need 1250 for this half tho. Yooo.” The police could see these messages without needing a password and could reply to “Dew.”
Another message from “Dew” asked, “What you gonna need that cause I don’t want to drive around with it.”
The Guelph police thought this was an ongoing drug deal – they believed “1250 for this half” meant heroin laced with fentanyl. The sergeant in charge authorized another officer to text back and pretend to be Gammie to bring “Dew” to the house, as they saw fentanyl-laced heroin as a public safety problem.
Campbell came after 7 p.m. and, after a short chase, was arrested. He had the phone “Dew” used to message Gammie on him, along with just over 14 grams of heroin laced with fentanyl, based on Ontario court records.
Campbell’s lawyer argued that the police broke his Charter rights by using Gammie’s phone to talk to him and by taking “Dew’s” phone and matching the text messages to their own.
Normally, police would need a warrant to get a suspect’s cellphone information, including text messages. However, the prosecution argued that these were urgent conditions – essentially, the police had to act quickly to stop the drugs from getting onto the streets.
The Ontario Court of Appeal's 2022 decision said, “The … fear (was) that, if police did not take action, the deal would have fallen through and fentanyl would make its way into the community.
The Court of Appeal decided that while Campbell did have a reasonable expectation of privacy in the text messages, the police were right that fentanyl-laced heroin hitting the streets counted as urgent conditions. The court upheld Campbell’s sentence of five years and eight months.
Stephen Whitzman, Campbell’s lawyer, told Global News that he believes what the Guelph police did was similar to a “wiretap” – intercepting Campbell’s text messages without a warrant.
Whitzman said, “They continued the conversation with Campbell, my client, so that the deal would be completed and Campbell would show up with the drugs. Now, based on the current state of the law, they don’t have the power to do that,
“However, if the Crown is correct, then that’s not a search, and they can do it. … At the very least, it’s a search. I’m also arguing that it’s a wiretap.”
Public Prosecution Service of Canada counsel David Quayat, who will present the case on Thursday, chose not to give a statement.
The British Columbia Civil Liberties Association (BCCLA), which will also present arguments during the hearing, has urged the Supreme Court to have a narrow view of what constitutes an “exigent” circumstance.
“Due to their nature, exigent circumstances are extraordinary,” the BCCLA’s written submission to the court stated.
“However, if courts take an overly generous approach to the doctrine of exigent circumstances, this may lessen its exceptional nature and indicate to police officers that the prior judicial authorization process will regularly give way to a broad range of ‘emergencies.’”
