In R v. Campbell, 2024 SCC 42 (“Campbell”), the Supreme Court of Canada (“SCC”) weighed in on whether the police had lawful authority to use the cellphone of a drug dealer without a warrant to continue a text message conversation with an alleged drug distributor. In a 6-3 split, the SCC held that while there was a violation of section 8 of the Charter and Rights and Freedoms [“Charter”], the warrantless search of Mr. Campbell was justified under the exigent circumstances exception outlined in section 11(7) of the Controlled Drugs and Substances Act (“CDSA”).
Facts
The police lawfully seized a cellphone from a known drug dealer, Kyle Gammie, as they were arresting him. Soon after Gammie’s arrest, the cell phone lit up with text messages from another drug dealer trying to sell fentanyl-laced heroin (Campbell para 10). The police impersonated Gammie and arranged a meeting with the drug dealer through the phone’s lock screen (Campbell para 14). At the meeting location, Dwayne Campbell (“Campbell” or “the appellant”) arrived and was arrested. He was found to be in possession of fentanyl-laced heroin. Campbell claimed that he was not the sender of the first four text messages, but had sent and received the later texts about the drug delivery (Campbell para 15).
At trial, Campbell argued that this exchange breached his s. 8 Charter right against unreasonable search and seizure. Accordingly, he argued that the text messages should be excluded from evidence under s. 24(2) of the Charter. .
Judicial History
Both the trial judge and the Ontario Court of Appeals (“ONCA”) relied on the principle of reasonable expectation of privacy set out in R v Marakah, 2017 SCC 59 (“Marakah”), which states that text messages can attract a reasonable expectation of privacy when the claimant has “a substantive expectation of privacy” that is objectively reasonable given the circumstances (Campbell para 17). The trial judge found that the accused had no reasonable expectation of privacy in the text messages because his subjective expectation was not objectively reasonable, therefore there was not a breach under section 8 of the Charter (Campbell para 17). The trial judge found that the texts did not reveal personal or core biographical information, and included mundane conversation that “could have been overheard on a bus” (Campbell para 18).
The ONCA partially reversed the trial judge’s decision. The ONCA found that Campbell had a subjective expectation of privacy in the text messages which was objectively reasonable. The text message conversation was about a drug deal, which the ONCA felt would be something the parties would try and keep private (Campbell para 27). Because of this, the ONCA found that the police had breached section 8 of the Charter (Campbell para 27). However, they held that this breach was justified due to the exigent circumstances surrounding the risk fentanyl poses to the public. This is in line with the exigent circumstances exception codified in section 11(7) of the CDSA. Had the police not intervened in the messages, the fentanyl could have ended up on the street (Campbell para 29). Because of this justification, the ONCA did not consider section 24(2) of the Charter, which deals with the admission of evidence in the event of breached Charter rights.
Issue
Before the SCC, the following matters were at issue:
- Does Mr. Campbell have standing to allege that the police conducted a “search” that violated his rights under section 8 of the Charter?
- Was the search not authorized by law, and therefore “unreasonable” under section 8? In particular, was the search: (a) an “interception” under Part VI of the Criminal Code; (b) not incident to a lawful arrest; or (c) not justified by “exigent circumstances” that made it “impracticable” to obtain a warrant under section 11(7) of the CDSA?
- Should the evidence obtained be excluded under section 24(2) of the Charter?
Decision
In a 6-3 split, with Justices Rowe and Côté concurring, the SCC dismissed the appeal, holding that while Campbell had a reasonable expectation of privacy in the text messages, the breach was justified under the exigent circumstances exception outlined in section 11(7) of the CDSA.
Campbell Had a Reasonable Expectation of Privacy in His Text Message Conversation
The SCC agreed with the ONCA that Campbell had reasonable expectation of privacy in the text message conversation, therefore infringing his Charter right under section 8 (Campbell para 35). In establishing Campbell’s reasonable expectation of privacy, the SCC considered thefour lines of inquiry under Marakeh: (1) the subject matter of the alleged search; (2) whether the claimant had a direct interest in the subject matter; (3) whether the claimant had a subjective expectation of privacy in the subject matter; and (4) whether the claimant’s subjective expectation of privacy was objectively reasonable. Regarding section 8, the SCC stated that the court has focused on balancing the competing aims of personal privacy and public interest (Campbell para 38). There is no “automatic” rule of standing to text messages, and whether there is a reasonable expectation of privacy in a text message must be assessed on the circumstances of the case (Campbell para 40). This assessment of the reasonableness of the objective expectation also requires a normative and content-specific approach (Campbell para 47). The SCC stated that both the trial judge and ONCA erred in focusing on the contents of the text messages, rather than the potential for the conversation to reveal “deeply personal and biographical core information” (Campbell para 60). Ultimately, the SCC affirmed their position from Marakah that the privacy protected by section 8 includes the right to keep personal information “safe from state intrusion” (Campbell para 68).
The Search Was Reasonable
A warrantless search is presumed unreasonable, and the burden is on the Crown to prove that it was reasonable (Campbell para 81). The SCC accepted that the search was justified under section 11(7) of the CDSA. Section 11(7) states that an officer may exercise their powers of search and seizure without a warrant “if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impractical to obtain one” (Campbell para 83). The Crown argued that the police were required to take immediate action because they suspected that the drugs would have been trafficked to the community had they not intervened, which was accepted by the SCC (Campbell para 109).
Therefore, because the SCC accepted that the search was reasonable, section 8 of the Charter was not infringed. Because of this, the SCC found it unnecessary to address whether the evidence should be excluded under section 24(2) of the Charter.
Dissent
Justices Karakatsanis, Martin, and Moreau dissented, stating that the appeal should be allowed because the police’s actions breached section 8 of the Charter, and their actions cannot be justified under exigent circumstances (Campbell para 245). In respect to the specific factors outlined under the reasonable expectation of privacy, the dissent argued that hijacking someone’s identity and exploiting a relationship between two people is a high degree of intrusion and impacts people’s ability to trust the state (Campbell para 260). The dissent also argued that the facts do not justify an imminent safety risk and do not create an exigent circumstance. They argued that through jurisprudence it has been found that the main categories for exigency include loss or destruction of evidence, officer or public safety, and hot pursuit (Campbell para 310). Moreover, they stated that previous case law has shown that the safety branch must be interpreted narrowly, and a general societal safety concern is not sufficient to justify warrantless action “unless it poses an imminent threat” (Campbell para 324).
Justice Rowe’s Concur
In response to the dissent, Justice Rowe referenced R v Paterson, 2017 SCC 15, in which the SCC outlined a doctrine of exigent circumstances, including preserving public safety (Campbell para 159). Justice Rowe argued that the facts in this case did in fact point to a threat to public safety given the significant quantity of drugs containing fentanyl (Campbell para 162).
Justice Côté’s Concur
Justice Côté agreed with the majority’s decision to dismiss the appeal, but argued that the police conduct did not amount to a search under section 8 of the Charter. She stated that not every investigation or examination the government may do will equate to a search under section 8. Rather, a search becomes captured under section 8 when the police activity “invades a reasonable expectation of privacy” (Campbell para 174). Justice Côté also stated that Marakeh did not create a baseline expectation that all text message conversations hold a reasonable expectation of privacy; instead, reasonable expectation of privacy is assessed through a case-by-case basis (Campbell para 179). In this situation, the police were in the midst of an undercover investigation in a drug case, and when they saw the initial four messages, it was evident that it was a drug transaction connected to the arrest of Gammie.
In response to the dissent, Justice Côté argues that there should be less weight placed on Campbell’s privacy interests, given that the police lawfully knew through the first four messages that the matter at hand was criminal activity (Campbell para 232).
Analysis
Although the SCC ultimately concluded that the infringement of section 8 of the Charter was justified, the ruling nonetheless provides some important insights about the reasonable expectation of privacy in text messages. Campbell further clarifies the evolving boundaries of digital privacy in relation to Charter rights and police powers. It also highlights the tension in applying reasonable expectations of privacy, especially in a criminal activity setting. As Justice Côté states, Marakeh was a landmark case for section 8 analysis with electronic communication, but it also left a lot of questions on applying the reasonable expectations of privacy standard — something Campbell works to address (Campbell para 179). The majority’s assessment that electronic messages can lead to private and/or biographical information — even where the actual content may appear mundane — represents a reaffirmation of the broad and protective scope of section 8. By moving away from a content-based analysis, the Court strengthens privacy rights in a digital age.
At the same time, the SCC’s endorsement of the exigent circumstances exception — particularly in the context of public health and criminal activity — reflects the boundaries being shaped around the reasonable expectation to privacy. The majority’s focus on the police’s context and need to act quickly, especially given the potential impact that nonintervention could have had on public safety, highlights the limits to an individual’s right to reasonable expectation of privacy. However, the dissent’s concerns focus on the opposite — that marking the boundaries too far can lead to mistrust in the state and intrusion into people’s privacy.
Ultimately, Campbell adds to the section 8 discourse in the digital age and addresses the inherent tensions that come when applying the principle of reasonable expectation of privacy in case-by-case situations. As technology continues to reshape the landscape of criminal investigations, the decision in Campbell signals that while privacy remains a constitutional cornerstone, its limits will be tested in the face of pressing exigent circumstances.
This article was edited by Donya Tamehi.