The Supreme Court of Canada has given police more latitude to fight the opioid crisis by ruling that the imperative of taking deadly drugs off the streets justified the actions of Ontario officers who snooped on a drug dealer’s text messages without a warrant.
The ruling released Friday expands the legal scope of what constitutes “exigent” – urgent – circumstances in Canada, according to one civil-liberties expert. And it may prompt other situations where police put aside people’s constitutional privacy protections in the name of pressing public safety imperatives.
The judges in the majority of the 6-3 decision agreed the legal leeway is necessary because of the scourge of chemical drugs that have killed thousands of Canadians in recent years.
“The Guelph police took a particular interest in fentanyl investigations to save people’s lives,” Supreme Court Justice Mahmud Jamal wrote. His ruling revisits how past top-court decisions have likened Canada’s fentanyl deaths to a “national crisis” over the past decade.
The court upheld the arguments advanced by law-enforcement agencies that drug dealers’ digital communications may need to be invaded in ways that would be typically off limits to police without warrants.
The case centres on the 2017 arrest of two drug dealers in Guelph. Police lawfully seized the cellphone of a suspected drug dealer who was alone when arrested. But in the course of that bust, four text messages popped up, indicating a drug deal was imminent. Police immediately responded to the texts, impersonating the first dealer as a buyer, and setting up a meeting with a second dealer, who was taken into custody and charged.
Police found 14 grams of fentanyl-laced heroin on the second dealer, Dwayne Alexander Campbell. Mr. Campbell was sentenced to nearly six years in prison at trial, a ruling that was upheld by the Ontario Court of Appeal. Mr. Campbell appealed the sentence to the Supreme Court of Canada, arguing that his privacy rights had been unlawfully invaded because police did not have a warrant for the improvised sting involving his text messages.
The Supreme Court majority found that Mr. Campbell had cause to argue that his privacy rights against unreasonable search had been violated – but that this did not matter. That’s because police and prosecutors could lawfully override them under Canada’s Controlled Drugs and Substances Act, which affords police powers of investigation “without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.”
Police in Guelph had argued they had to act urgently in the case to keep deadly drugs off the streets. They said they did not have adequate time to swear even an expedited warrant application against Mr. Campbell or his communications.
“The Crown submits that the police were required to take immediate action because they reasonably suspected that the drugs offered for sale … were heroin laced with fentanyl,” Justice Jamal wrote.
“I agree with the Crown ... I accept that the search was justified by exigent circumstances,” the ruling says. It adds that “police were reasonably justified in seeing this as a now-or-never situation requiring them to act immediately to protect public safety.”
The Supreme Court found that when the drug deals occurred in 2017, Guelph was an epicentre of drug overdoses in the province and noted that at the time in Ontario, more people were dying from fentanyl overdoses than from car crashes.
Over the past seven years, the drug crisis has only deepened in Canada.
Groups representing civil libertarians and criminal lawyers associations had urged the Supreme Court to be cautious in the Campbell case. They warned that the top court should refrain from expanding the exigent circumstances justification that can be claimed by police.
“It’s unlikely that the majority would have come to the same conclusion if the drug was cocaine,” said Daniel Song, a Vancouver lawyer. He said in an interview the new ruling may open the door to more warrantless stings by police, especially in fentanyl cases.
Mr. Song represented the B.C. Civil Liberties Association as an intervenor group. In a BCCLA brief filed with the top court, the group argued that a generalized deadly drug crisis should not be conflated with the kinds of specific urgency that more typically provides police cover to warrantlessly override privacy.
“At present, the opioid crisis gripping the country is undoubtedly a national public health emergency. But a public health emergency is not, in and of itself, an imminent threat within the narrow corridors of exigent circumstances,” the BCCLA brief says.
Such arguments found traction among three dissenting judges in the case. They ruled that the Guelph Police Service detectives did not have any lawful justification to invade Mr. Campbell’s privacy.
“Certain drugs, like the fentanyl found in the heroin sold in this case, produce tragic consequences for individuals and communities in Canada. This complex societal problem requires a multifaceted response,” reads the dissent co-written by Justices Sheilah Martin and Mary Moreau.
They and a third judge, Andromache Karakatsanis, warned the majority ruling invites more aggressive police tactics.
“However, stretching the exigent circumstances doctrine beyond what has previously, and can credibly, qualify as imminent harm opens the door to warrantless searches almost anytime police have an opportunity to seize drugs or whenever a potentially serious offence is being investigated,” the dissenters wrote.
“The result will be to authorize invasive and extensive police conduct outside of those rare instances in which the harm to public safety is so imminent and immediate.”