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Nick Whitfield and Joseph Neuberger, Neuberger & Partners LLP
The Supreme Court of Canada in R v Campbell 2024 SCC 42 found the warrantless search of a drug dealer’s cell phone, during which police posed opportunistically to set up a drug transaction, was lawful under the doctrine of “exigent circumstances”. By elevating generalized concerns about public safety to the level of imminent harm, the decision expands police search powers at the cost of constitutional protections against unlawful search and seizure.
Background and Facts:
The search arose after police in Guelph lawfully seized the cell phone of a known drug dealer incident to his arrest. Minutes later, the locked screen lit up with text messages offering to sell drugs. The police, posing as the drug dealer, text back to arrange the transaction at the drug dealer’s residence. When Mr. Campbell arrived a short time later, he was found in possession of heroin laced with fentanyl. Police charged him with drug trafficking and possession offences.
At trial, Mr. Campbell sought to exclude the text message evidence on grounds that the search had violated his constitutional right against unlawful search and seizure under section 8 of the Canadian Charter of Rights and Freedoms. The trial judge rejected his request, finding that Mr. Campbell had no reasonable expectation of privacy in the texts and therefore no standing to make a section 8 claim. The Court of Appeal for Ontario disagreed on the question of standing, but found the search was justified under s. 11(7) of the Controlled Drugs and Substances Act (“CDSA”), which carves out an exception for warrantless searches in exigent circumstances.
The main issue for the Supreme Court—and the main disagreement between the majority and dissent—was whether the factual circumstances in Mr. Campbell’s case met the threshold for exigency.
The Majority Decision:
In a controversial majority ruling, the Supreme Court found that the cellphone search was lawful, and the circumstances met the exigency threshold under s.11(7) of the CDSA.
The majority confirmed the test for exigent circumstances is the demonstration of “reasonable and probable grounds”. The Crown must establish the reasonable probability of the exigency based on the relevant facts and the police officers’ experience and expertise. The standard is one of urgency, not convenience, and the officers’ belief must be objectively grounded in the factual circumstances. Vague, speculative, or generalized concerns about the potential for lost evidence will not meet the threshold.
In Mr. Campbell’s case, the imminence of the suspected drug deal, and the known catastrophic effects of fentanyl on individuals and society, posed a grave risk to public safety that warranted immediate police action. In concurring reasons, Justice Rowe described the urgency of the situation as follows:
The harm to the public was “imminent” as there was a narrow window of opportunity for police to prevent what they reasonably believed was the sale … of a significant quantity of drugs containing fentanyl… If the police failed to prevent this sale, they believed it could well lead to deaths in the community.
The Crown, said Justice Rowe, did not need to show evidence that other drug deals were lined up to demonstrate the imminent risk. “The police had a limited window of opportunity to apprehend Mr. Campbell. Waiting for a telewarrant would have seriously undermined the police’s objective to protect the public.”
Policy Implications and Police Conduct:
The dissent disputed the imminent risk to public safety and flagged policy implications of expanding “exigent circumstances” to include prospective drug deals.
According to the dissent, the factual circumstances did not meet the required standard of exigency. The police had believed that another transaction might occur in the “near future”, not that it imminently would, and had no evidence of a second buyer in the event the undercover deal fell through. Drugs pose an ever-present risk to society, and generalized concerns over their harmful effects do not rise to the level of imminent harm. The situation in this case lacked urgency. There was no specific, immediate, concrete threat, and no imminent risk to public safety.
On policy, the dissent feared that the majority’s ruling will greenlight invasive search and seizures each time the police have an opportunity to seize drugs.
But the policy implications of R v Campbell go far beyond drug trafficking. Expanding the exigent circumstances doctrine beyond a credible definition of imminent harm paves the way for warrantless searches every time the police happen to be investigating a serious crime. The expansion of police power comes at the cost of an individual’s constitutional protection against unlawful search and seizure. Where widespread public anxiety about crime is elevated to an exigent harm, any offence—fraud, theft, voyeurism, sexual assault—may be subject in future to unreasonable and invasive police conduct.
