FOR IMMEDIATE RELEASE

Ottawa, ON (unceded Algonquin Anishinaabeg traditional territory) – The BC Civil Liberties Association (BCCLA) welcomes, in part, today’s decision of the Supreme Court of Canada in R v Campbell, 2024 SCC 42. On one hand, we are relieved the majority for the Court affirmed individuals should expect a reasonable expectation of privacy in their text messages. On the other hand, we are disappointed that the majority widened the boundaries of exigent circumstances to justify the warrantless search conducted by the police.

This case arises out of a situation where the police lawfully seized the phone of a known drug dealer and subsequently observed text messages that appeared on the locked screen indicating a potential drug transaction involving fentanyl. In response, and without a warrant, the police decided to use the phone and impersonate the dealer to carry out the transaction. Hours later, the Appellant, Dywane Alexander Campbell arrived at the arranged drop off location with the drugs and was arrested. His phone containing the complete exchange of text messages with the dealer was seized as evidence.

The BCCLA intervened in this case to argue that police must respect the strict boundaries articulated by the common law doctrine of exigent circumstances to shield the doctrine from police misuse and abuse. 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 doctrine does not permit the police to create or maintain an urgent circumstance to skirt the prior judicial authorization process.

The BCCLA also argued that the public health emergency created by the opioid crisis should not dominate a framework that is meant to afford a rare exception to the requirement for a warrant under s. 8 of the Charter. The risk that fentanyl may end up on the streets at some unknown point in time is not, in and of itself, an imminent threat within the intentionally narrow corridors of exigent circumstances.

Veronica Martisius, BCCLA Staff Lawyer reacts:

“We’re relieved today that the Supreme Court of Canada has affirmed individuals’ reasonable expectation of privacy in their text conversations when it comes to police involvement. We’re also pleased that the dissenting Justices echoed our concerns around police accountability. They emphasized that the case law does not support a conclusion that the potential sale and subsequent use of a harmful drug constitutes urgency in the absence of a risk of imminent danger to police or public safety under the doctrine of exigent circumstances. They cautioned, and we agree, that this decision will authorize invasive and over-reaching police conduct.”

The BCCLA was represented by Daniel J. Song, K.C. of Pringle Law and BCCLA Staff Counsel, Veronica Martisius.