In R. v. Campbell, the Supreme Court of Canada examined whether a warrantless police search of text messages violated the accused’s right to privacy under the Charter. The case centered on urgent public safety concerns—fentanyl-laced drugs were about to enter circulation—and whether these concerns justified bypassing the usual requirement of obtaining a warrant.
In doing so, the Court highlighted the concept of “exigent circumstances,” which allows police to act swiftly in situations where a delay could pose serious risks. This blog discusses the facts of Campbell, the legal framework underlying exigent circumstances, and the important lessons this decision provides for future cases involving privacy rights and warrantless searches.
What Happened in R. v. Campbell?
On a fateful night in June 2017, Guelph police arrived at the home of Kyle Gammie, otherwise known as “G.” G was a known drug dealer. Police arrested him as he was attempting to drive off in his car. During the arrest, G threw two cell phones into the passenger’s seat. Police seized the phones incident to arrest.
Shortly thereafter, one of the phones began to display a series of text messages. They were coming from Dwayne Campbell, otherwise known as “Dew.” Dew was arranging to deliver a large quantity of drugs to G. The texts revealed that the drugs contained a deadly combination of heroin mixed with fentanyl. Having seized the phone, police started responding to Dew while pretending to be G. They engaged in a lengthy back-and-forth about the drug transaction.
When Dew arrived at G’s house to deliver the drugs, he was immediately arrested.
Journey to the Supreme Court of Canada
At trial, Campbell argued that police interfered with his reasonable expectation of privacy by intercepting a private conversation without a warrant (contrary to Part VI of the Criminal Code of Canada) and that this infringed his right to be secure against unreasonable search and seizure, which is protected by Section 8 of the Canadian Charter of Rights and Freedoms.
But he failed to persuade the court.
The trial judge, citing R. v. Marakah (which we discussed in a recent blog), rejected the claim that Campbell had a reasonable privacy interest in the text messages. He added that even if the texts were private, the search would nonetheless be authorized under section 11(7) of the Controlled Drugs and Substances Act, which carves out an exception for “exigent circumstances.”
On appeal, Justice Trotter held that Campbell did have a reasonable privacy interest in the text message exchange. He also affirmed that there were exigent circumstances that justified the use of section 11(7) by the police.
The Supreme Court of Canada proceeded to dismiss the appeal. Writing for the majority, Justice Jamal concluded that the police’s warrantless search of the text messages was supported by exigent circumstances. As such, it did not breach section 8 of the Charter.
What are Exigent Circumstances?
Section 8 of the Charter, which establishes the right to be secure against unreasonable search or seizure, prohibits police from conducting “unreasonable” searches that violate the right to privacy. When a search is conducted without a warrant (as in Campbell), it is presumed to be unreasonable.
But in the context of a drug-related crime, the need to obtain a warrant can be set aside for exigent circumstances. In such cases, the warrantless search may be considered reasonable (i.e., authorized by the law).
Section 11(7) of the CDCA reads as follows:
(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.
Section 11(8) goes on to address seizure:
(8) A peace officer who executes a warrant issued under subsection (1) or exercises powers under subsection (5) or (7) may seize, in addition to the things mentioned in the warrant and in subsection (6), anything that the peace officer believes on reasonable grounds has been obtained by or used in the commission of an offence or that will afford evidence in respect of an offence.
Criteria for Exigent Circumstances
To determine whether the exigent circumstances exception applies, the following two criteria must be met:
- Urgency to preserve evidence, officer safety, and/or public safety.
- It would be impracticable or impossible to obtain a warrant in time.
Regarding the standard of proof, police must have reasonable and probable grounds—not merely reasonable suspicion—to claim the exigent circumstances.
How were Exigent Circumstances Established in Campbell?
In Campbell, Justice Jamal—speaking for the majority—held that both criteria for exigent circumstances were met.
With respect to urgency, police reasonably believed that the situation at hand was an emergency, as the drugs in Campbell’s possession were going to be sold imminently. Moreover, the drugs posed a grave threat to public safety insofar as they contained two substances—heroin and fentanyl—that are known to be deadly.
Reflecting on the second requirement, Jamal found that while police had grounds to obtain a warrant, it would have been impracticable to do so. The only available option at that time was a telewarrant, which would have taken too long to arrive.
Based on this information, police had to act expeditiously within a narrow window of time.
The Court Cites R. v. Paterson
The Supreme Court explicitly clarified the criteria for the application of section 11(7)—i.e., the urgency of the situation and the impracticability of obtaining a warrant—in the 2017 case of R. v. Paterson. Paterson involved a warrantless entry into the accused’s apartment whereupon police discovered drugs and firearms.
The facts in Paterson did not support the application of the exigent circumstances exception. The majority were convinced that police could have obtained a warrant. Therefore, the accused’s section 8 Charter rights against unreasonable search and seizure had been violated.
In arriving at their decision in Campbell, the Supreme Court relied heavily on the reasoning and conclusions reached in Paterson.
The Dissent Disputes Exigent Circumstances
The arguments advanced by the dissenting judges in Campbell are worth mentioning. Justices Martin and Moreau (with Karakatsanis) argued that the requirements for exigent circumstances were not met because the risk associated with the drug sale was “too hypothetical” and that the danger to public safety was not sufficiently imminent.
The dissent was also critical of the contention that it would have been impracticable or impossible to obtain a warrant in time.
The Developing Landscape of Exigent Circumstances
A number of provocative issues were at play in Campbell, including the individual’s right to privacy in a text message exchange (which we recently covered in the context of a sexual assault case) and whether the police conducted an “interception of private communications” according to the wiretap provisions in Part VI of the Criminal Code.
However, the justices properly highlighted the exigent circumstances exception in the Controlled Drugs and Substances Act as a crucial issue. The fact that the Supreme Court was split in its decision (6:3) indicates that the law is not yet settled; lingering questions remain, and we are likely to see them appear in future cases as jurisprudence surrounding exigent circumstances continues to develop.
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