WHAT: BCCLA at Supreme Court of Canada to intervene in R v Campbell to ensure police accountability when contemplating a warrantless search and seizure of electronic communications
WHEN: March 21, 2024, at 9:30 am EST/ 6:30 am PST
WHERE: Supreme Court of Canada, live webcast available
Ottawa, ON (unceded Omàmìwininìwag (Algonquin) territory) –The BC Civil Liberties Association (BCCLA) will present oral arguments as an intervener at the Supreme Court of Canada’s hearing of R v Campbell. This case will confirm whether and to what extent individuals are entitled to a reasonable expectation of privacy vis-à-vis their sent text messages and will revisit the boundaries of the common law doctrine of exigent circumstances.
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 police decided to proceed without obtaining a warrant because they believed that the transaction would be abandoned if the dealer broke off communication and consequently, the drugs would be sold to someone else with the risk that fentanyl might end up on the streets.
In this appeal, the BCCLA will argue that police must respect the boundaries of exigent circumstances to shield the doctrine from police abuse. First, the law does not permit the police to create or maintain an urgent circumstance to skirt the prior judicial authorization process. The emergency must be bona fide and marked by a degree of immediacy that overrides the accused’s privacy interests and the state’s obligation to apply for a warrant. Second, the doctrine of exigent circumstances does not contemplate the police participating in maintaining the urgency for investigative purposes. Finally, the public health emergency created by the opioid crisis cannot overwhelm the analysis. The nature of fentanyl impacts the gravity of the risk to public safety. But the risk must still be imminent before the police can act without a warrant.
The BCCLA is represented by Daniel Song, KC of Pringle Law, and Veronica Martisius of the BCCLA.
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