Are Text Messages Between Drug Dealers Private, Requiring Prior Judicial Authorization to Access?

In R. v. Campbell 2022 ONCA 666, he was found guilty of trafficking in fentanyl and possession of fentanyl for the purpose of trafficking, as well as trafficking in heroin and possession of heroin for the purpose of trafficking, contrary to ss. 5(1) and 5(2) of the Controlled Drugs and Substances Act (14.33 grams of heroin mixed with fentanyl). He received a global sentence of five years and eight months of imprisonment. He appealed his convictions and sentence.

There were three main players in this scenario: (a) Kyle Gammie, the person whose phone the police took possession of; (b) a person known as “Dew”, another drug dealer who gave the appellant a phone to use to communicate with Gammie; and (c) the appellant, who thought he was communicating with Gammie while using “Dew’s” phone. The events unfolded in the afternoon when five members of the Guelph Police Service Drug Unit executed a search warrant at Gammie’s residence. Gammie was a known drug dealer. The police were acting on a confidential tip. Gammie and a female were arrested as they left the residence and attempted to get into a car. In the course of the arrest, Gammie threw two cellphones onto the passenger seat of the car. Two officers handcuffed and searched Gammie, locating cash and cocaine on his person. One officer searched the car incident to the arrest and seized the two phones. He handed them over to another officer, the exhibits officer, who placed the phones on a table inside Gammie’s apartment. Minutes later, one of the phones lit up with incoming text messages. Four messages from “Dew” were visible on the locked screen.

Officers thought the messages revealed a drug transaction in progress – specifically, a transaction for heroin, which would likely be laced with fentanyl. The phrase “1250 for this half” was consistent with a transaction for “cheap” heroin (i.e., heroin mixed with fentanyl). The officers were concerned that if they did not follow through and gain control of these drugs, fentanyl might find its way onto the street. They considered this a public safety issue. It was decided to respond to the messages with the aim of having “Dew” deliver the drugs to the residence. An officer exchanged 35 messages with “Dew” over the next couple hours. The messages advised “Dew” where to go. “Dew” gave updates as to his location. Sometime later, the appellant arrived at Gammie’s apartment in accordance with the arrangements made with the officer. Upon seeing the police, he took off down the hallway but was shortly taken to the ground by police and placed under arrest. The police found a phone on the appellant – the one used to communicate with the Gammie phone. The screen of this phone was photographed to capture the text messages with the Gammie phone. The police also seized $40 in cash and 14.33 grams of heroin mixed with fentanyl.

At trial, the appellant brought a motion under ss. 8 and 24(2) of the Charter. He claimed that his rights were violated by the actions of the police in: (1) using Gammie’s phone to communicate with him and then seizing the messages sent and received during this exchange; and (2) by seizing and examining the same set of messages on the phone given to him by “Dew”. The ONCA said this case was about the search of a text message conversation. It started as a dialogue between two individuals, but the police decided to continue the exchange by surreptitiously assuming the identity of one of them. Although there are some differences between the facts of this case and the facts in R. v. Marakah 2017 SCC 59 (a previous post of mine, worth a read for its reasoning), they are not legally significant. Based on the holding in Marakah, the ONCA found that the trial judge should have found that the appellant had a reasonable expectation of privacy in his communications, and that a reasonable expectation of privacy does not simply rest on the concept of control – i.e., the risk that, once a text message is sent, the recipient of that message may disclose them to others. In Marakah, McLachlin C.J. recognized that “control, ownership, possession, and historical use are relevant to determining the reasonableness of an expectation of privacy. However, it is just one factor to be considered, and a person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it, …he or she may yet reasonably expect that information to remain safe from state scrutiny.”

However, in this particular case, the ONCA found that although the appellant had standing to assert his rights under s. 8 of the Charter, his claim must ultimately fail because the actions of the police were justified by exigent circumstances, focused on public safety: had this drug transaction, already in progress, not been rerouted in the manner they chose, the appellant would have aborted the operation. The drugs would have been outside the reach of the police and sold to someone else at another time, ultimately reaching users on the street. This, combined with the notoriously harmful nature of fentanyl, amounted to exigent circumstances, those circumstances rendered it “impracticable to obtain a warrant” in this case, but police must remember that mere convenience is not sufficient to proceed without a warrant, immediate action must be required.

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