Canada’s top court could soon weigh in again on police access to cellphone data without a warrant.
The case could have far-reaching consequences for how cops approach accessing cellphone data in emergency situations, as well as Canadians’ privacy rights.
The case involves the arrest of a convicted drug dealer, Dwayne Alexander Campbell, by Guelph police in June 2017. But Campbell wasn’t the Guelph police drug unit’s target that day.
Officers obtained a search warrant for the house of another suspected drug dealer, Kyle Gammie. Along with the cocaine and cash police found upon arrest, Gammie had two cellphones on him. While the police were collecting evidence at the residence, one of the cellphones lit up with text messages from someone named “Dew,” another suspected drug dealer.
“Family I need 1250 for this half tho. Yooo,” the text messages read, according to Ontario Court of Appel records. The messages were visible on the phone’s lock screen, meaning police did not need a password to view them and respond to “Dew.”
“What you gonna need that cause I don’t want to drive around with it,” another of “Dew’s” messages read.
The Guelph police figured this was a drug transaction in progress – believing “1250 for this half” referred to heroin laced with fentanyl. The sergeant in charge of the scene authorized another officer to text back and impersonate Gammie to bring “Dew” to the residence, reasoning that fentanyl-laced heroin hitting the streets would be a public safety issue.
Campbell arrived after 7 p.m. and, after a brief foot chase, was arrested. He had the phone “Dew” had used to communicate with Gammie on his person, and just over 14 grams of heroin laced with fentanyl, according to Ontario court records.
Campbell’s lawyer argued police violated his Charter rights by using Gammie’s phone to communicate with him, and by seizing “Dew’s” phone and matching the text messages to the ones police sent.
Normally police would have to obtain a warrant to access a suspect’s cellphone data, including text messages. But the Crown argued these were “exigent” circumstances — basically that the police had to act quickly to keep the drugs off the street.
“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,” read the Ontario Court of Appeal’s 2022 decision.
The Court of Appeal found that while Campbell did have a reasonable expectation of privacy in the text messages, the police were correct that fentanyl-laced heroin hitting the streets counted as “exigent” circumstances. 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 akin to a “wiretap” — intercepting Campbell’s text messages without a warrant.
“They continued the conversation with Campbell, my client, so that the deal would be completed and Campbell would show up with the drugs. Now, on the current state of the law, they don’t have power to do that,” said Whitzman on Tuesday.
“But if the Crown is right, then that’s not a search, and they can do it. … At the very least, it’s a search. I’m arguing as well that it’s a wiretap.”
Public Prosecution Service of Canada counsel David Quayat, who will argue the case on Thursday, declined to comment.
The British Columbia Civil Liberties Association (BCCLA), which will also make arguments in the hearing, has urged the Supreme Court to take a narrow view of what constitutes an “exigent” circumstance.
“By their nature, exigent circumstances are extraordinary,” the BCCLA’s written submission to the court read.
“But if courts take an unduly generous approach to the doctrine of exigent circumstances, this may dilute its exceptional nature and signal to police officers that the prior judicial authorization process will routinely yield to a broad range of ‘emergencies.’”
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