Police were justified in using a drug dealer’s phone to orchestrate the arrest of a suspect in a drug trafficking operation without first getting a warrant due to the urgency of the situation, Canada’s top court ruled Friday in dismissing an Ontario man’s appeal.
Dwayne Alexander Campbell sought to have his drug trafficking conviction overturned, arguing police in Guelph, Ont., violated his Charter right to be free from unreasonable search or seizure in the 2017 incident.
Police seized the cellphone of a known drug dealer and noticed four incoming text messages on its lock screen that appeared to be about a suspected transaction for heroin, likely laced with deadly fentanyl.
Over the next two hours or so, police responded to the text messages while posing as the drug dealer, without first obtaining a warrant, court documents show. They then arranged to have the drugs delivered to the dealer’s home and arrested Campbell when he arrived, after finding him in possession of heroin laced with fentanyl, documents show.
Campbell denied sending some of the texts and applied to have all of the messages excluded from the evidence at trial. The trial judge found he did not have a reasonable expectation of privacy in the texts, and therefore his rights had not been violated. Even if there had been a breach, the evidence should not have been excluded, the trial judge ruled.
Campbell challenged the conviction, but his appeal was rejected. The Court of Appeal for Ontario found that while he did have a reasonable expectation of privacy, the search was justified due to the urgent circumstances. He then took the case to the Supreme Court of Canada.
In a split decision released Friday, the Supreme Court also found the use of the phone without a warrant was justified due to the urgent circumstances.
Writing for a majority, Justice Mahmud Jamal found Campbell did have a reasonable expectation of privacy, noting police used an “especially intrusive investigative technique” by taking over a conversation already underway and “essentially hijacking the identity of one of the participants.”
However, the judge wrote, police had the authority to search the text messages without a warrant under the circumstances.
Police reasonably believed they faced an urgent situation involving the suspected sale of heroin laced with fentanyl, which represented a “grave risk” to public safety, Jamal wrote.
“Although the police had grounds to obtain a warrant, it was impracticable to obtain one as only a telewarrant would have been available at that time of day and it would likely arrive too late to complete this transaction,” he wrote.
The three dissenting judges found the police’s actions could not be justified by urgent circumstances, nor was the search of the texts related to the reasons for arresting the dealer whose phone was seized.
The facts of the case don’t show an imminent safety risk that would justify acting without a warrant, they said.
“Even accepting that the quantity and type of drugs involved posed a risk of potential harm to public safety, the circumstances fall well short of the requirement of an imminent risk to an individual or group.”
Supreme Court decisions don’t need to be unanimous. Cases can be decided by a majority of the court, with the minority also laying out its reasons for dissenting.
