COURT OF APPEAL FOR ONTARIO

DATE: 20220927 DOCKET: C68759

Lauwers, Roberts and Trotter JJ.A.

BETWEEN

His Majesty the King Respondent

and

Dwayne Alexander Campbell Appellant

Counsel: Stephen Whitzman, for the appellant David Quayat, for the respondent

Heard: May 9, 2022

On appeal from the convictions entered by Justice Gordon D. Lemon of the Superior Court of Justice on May 7, 2020, with reasons reported at 2020 ONSC 4172, and from the sentence imposed on October 30, 2020, with reasons reported at 2020 ONSC 6605.

Trotter J.A.:

A. Introduction

[1] The appellant 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, S.C. 1996, c. 19 (“CDSA”). He received a global sentence of five years and eight months of imprisonment. He appeals his convictions and sentence.

[2] The appellant’s principal ground of appeal against conviction is that his s. 8 Charter rights were infringed when the police took control of another drug dealer’s phone and facilitated a drug transaction with the appellant through text messages. The trial judge found that this police strategy did not violate the appellant’s s. 8 Charter rights and that, even if there was a breach, the evidence should not be excluded under s. 24(2).

[3] I would uphold the trial judge’s conclusion on s. 8 of the Charter, but for different reasons. I would also dismiss the other grounds of appeal against conviction, as well as the sentence appeal.

B. Factual Overview

[4] There were three main players in this scenario: (a) Kyle Gammie, the person whose phone the police commandeered; (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. [1]

[5] The events unfolded on the afternoon of June 14, 2017 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.

[6] In the course of the arrest, Gammie threw two cellphones onto the passenger seat of the car. P.C. Brown and P.C. Orok handcuffed and searched Gammie, locating cash and cocaine on his person. P.C. Brown searched the car incident to the arrest and seized the two phones. He handed them over to P.C. Orok, the exhibits officer, who placed the phones on a table inside Gammie’s apartment.

[7] Minutes later, one of the phones lit up with incoming text messages. Four messages from “Dew” were visible on the locked screen. They read:

Family I need 1250 for this half tho Yooo What you gonna need that cause I don’t want to drive around with it What time you gonna need it

[8] When P.C. Brown saw these messages, he brought them to the attention of P.C. Orok and Sgt. Bair, the officer-in-charge. They 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.

[9] Sgt. Bair instructed P.C. Orok to impersonate Gammie by responding to the messages with the aim of having “Dew” deliver the drugs to the residence. P.C. Orok exchanged 35 messages with “Dew” over the next couple hours. The messages advised “Dew” where to go. “Dew” gave updates as to his location.

[10] At around 7:05 p.m., the appellant arrived at Gammie’s apartment in accordance with the arrangements made with P.C. Orok. Upon seeing the police, he took off down the hallway but was shortly taken to the ground by Sgt. Bair 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.

C. Section 8 of the Charter

[11] 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”.

(1) The voir dire

[12] A number of police officers testified. As noted above, the police believed that the text messages from “Dew” were about an impending drug deal. After a brief discussion between the officers, Sgt. Bair made the decision that they should impersonate Gammie in a text message exchange with “Dew”. He considered the following factors in reaching this decision:

• He believed that the message sender did not have a reasonable expectation of privacy in the text messages;
• He believed that the use of Gammie’s phone was not for the purpose of gathering evidence against Gammie, but rather to investigate the drug deal that appeared to be taking place; and
• He believed it to be an exigent circumstance because the drug at issue was suspected to be heroin laced with fentanyl, a very dangerous substance. He also believed that “Dew” would back out of the deal if he did not receive a response from Gammie.

[13] P.C. Orok was able to conduct this text message exchange without the need of a password. He could read incoming messages and send messages even though the phone was locked. He did not attempt to look at any other content or data on the device.

[14] The appellant testified on the voir dire. He said that he received the phone he was using from “Dew.” He did not know “Dew’s” real name. The phone was given to him for the purpose of engaging in a drug transaction; he was to return it to “Dew” after completing the deal, as he had done in the past.

[15] The appellant believed that he was delivering cocaine to Gammie. His evidence was unclear about his relationship with Gammie. At one point, he seemed to suggest that he had not met Gammie before the day of his arrest. In other parts of his testimony he admitted to knowing Gammie and having previously delivered drugs to him while using “Dew’s” phone. The appellant believed that Gammie would keep their correspondence private and that no one else would see their messages.

[16] The appellant denied sending the first four text messages reproduced above. They were sent by “Dew”, before “Dew” had given him the phone. The appellant agreed that he had no standing to challenge the search of the texts exchanged between “Dew” and Gammie. However, he claimed to be the author and recipient of the subsequent messages exchanged with the Gammie phone.

[17] It was conceded on behalf of the appellant that Gammie’s phone was lawfully seized as incident to his arrest. Moreover, the police subsequently obtained warrants to seize and examine the contents of both phones.

(2) The trial judge’s ruling

[18] The trial judge dismissed the Charter motion in a thorough written ruling: R. v. Campbell, 2019 ONSC 1142.

[19] The trial judge relied heavily upon R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608. He recognized that protection under s. 8 of the Charter is only available if an accused person is able to establish a reasonable expectation of privacy in the subject matter of the search. This involves (1) a subjective expectation that is (2) objectively reasonable: at para. 36. As Marakah, at paras. 10-11, and earlier cases teach, the determination of whether a person has a reasonable expectation of privacy requires a consideration of “the totality of the circumstances” involving the four following lines of inquiry:

1. What was the subject matter of the alleged search?
2. Did the claimant have a direct interest in the subject matter?
3. Did the claimant have a subjective expectation of privacy in the subject matter?
4. If so, was the claimant’s subjective expectation of privacy objectively reasonable?

[20] The Crown conceded that the texts were the subject matter of the search and that the appellant had a direct interest in those texts. Although the trial judge expressed some doubt on the matter, he found that the appellant had a subjective expectation of privacy in the texts. He said: “I can presume that conversations between two drug traffickers would, as between the two of them, be expected to be kept private”: at para. 39.

[21] But despite using this normative language, the trial judge rejected the appellant’s claim that his expectation was reasonable. Relying on R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, the trial judge found that the exchange between the appellant and the Gammie phone, “did not reveal any personal or biographical information about him nor was it likely to. These are mundane comments that, in another age, could have been overheard on a public bus. Mr. Campbell could not expect that they would be private”: at para. 44.

[22] In the alternative, and after characterizing this area of the law as “fast developing”, the trial judge found that there was a search of the Gammie phone. In doing so, he rejected the Crown’s submission that the text messages were in “plain view”. The trial judge explained, at para. 63:

In my view, there was a search of the cell phone. The texts with “Dew” may have been in plain view (and are not in issue) but the other entries between Officer Orok and Mr. Campbell were produced through the use of the phone itself as part of the investigation. They were not obtained by inadvertence. The evidence obtained was effectively a search of the phone.

[23] However, based on his finding that the officers thought they were dealing with a transaction involving heroin that was likely laced with fentanyl, the trial judge concluded there were exigent circumstances that justified the warrantless use of the Gammie phone. The exigency was the fear that, if police did not take action, the deal would have fallen through and fentanyl would make its way into the community.

[24] The trial judge also considered whether there was an “interception” of the communications between the appellant and the Gammie phone which would have required prior authorization under Part VI (Invasion of Privacy) of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge adopted the reasoning in R. v. Beairsto, 2018 ABCA 118, 359 C.C.C. (3d) 376, leave to appeal refused, [2018] S.C.C.A. No. 284, that, where a police investigation involves a deception as to with whom the accused is communicating, absent intrusive technologies amounting to an “interference” between the recipient and the sender, no interception is made out. Consequently, the police were not required to obtain prior authorization before engaging in this exchange with the appellant: at para. 105.

[25] The trial judge then turned his attention to the handling of “Dew’s” phone that was seized upon the appellant’s arrest. The Crown conceded that there was a search of that phone, but relied on the same exigent circumstances to justify the warrantless search. The trial judge rejected this submission, finding, at para. 126: “The exigency related to the fentanyl was spent by the time Mr. Campbell was arrested. The police had the drugs off the street.” He found that the search of the appellant’s phone constituted a breach of his s. 8 Charter rights.

[26] The trial judge also considered, in the further alternative, the application of s. 24(2) of the Charter. Applying the factors established in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the trial judge found that the evidence should not be excluded.

[27] The trial judge concluded that the breach was not serious and did not warrant exclusion. He observed that the investigation occurred before the Supreme Court of Canada’s decision in Marakah. When the police made the decision to impersonate Gammie, this court’s decision in Marakah, 2016 ONCA 543, 131 O.R. (3d) 561, rev’d 2017 SCC 59, [2017] 2 S.C.R. 608, would appear to have authorized this approach. Moreover, the officers made a considered decision about what they should do. Thus, the trial judge found that the officers acted in good faith and their conduct was at the less serious end of the continuum.

[28] Moving to the second Grant factor, the trial judge found that, although the impact of the breach on the appellant’s privacy interests was “significant”, other considerations prevailed. In particular, the police did not attempt to access other information concerning the appellant. He found that this factor did not favour exclusion.

[29] Lastly, the trial judge found there was a high societal interest in the admission of the evidence, especially given the dangerous drugs at issue and the reality that exclusion would “gut” the Crown’s case. Consequently, the application was dismissed.

(3) Positions of the parties

[30] The appellant submits that the trial judge erred in his analysis of the privacy issues at stake in this case. He submits that, applying Marakah, the police intruded on a reasonable expectation of privacy when they used the Gammie phone to engage the appellant in conversation. The trial judge erred in finding that the appellant’s expectation of privacy was not objectively reasonable. Anticipating the respondent’s position, the appellant disputes that the Supreme Court’s decision in R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320 is a complete answer to the illegality of the scenario that transpired in this investigation. The appellant contends that Mills was an undercover investigation in a very specific context (i.e., child luring); this case did not involve an undercover operation.

[31] In his factum, the appellant argued that the actions of the police amounted to an interception under Part VI of the Criminal Code. The point was not pushed in oral argument. As counsel for the appellant submitted, the case turns on the s. 8 Charter issue.

[32] The respondent submits that this ground of appeal should fail, but for different reasons than reflected in the trial judge’s ruling. The respondent says that there was no true search in this case because the police were acting in an undercover capacity – they were simply communicating with a suspect, albeit by electronic means. Thus, there was no s. 8 Charter breach; instead, it was a case of good police work and good luck. In support of his position, the respondent Crown relies heavily on Mills. In the alternative, the respondent attacks the trial judge’s finding that the appellant had a subjective expectation of privacy in his communications with Gammie. He characterizes the appellant’s evidence on the voir dire as “preposterous”.

(4) Analysis

[33] This case is 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 Marakah, they are not legally significant. Based on the holding in Marakah, the trial judge should have found that the appellant had a reasonable expectation of privacy in his communications.

[34] I am not persuaded that the exception to Marakah that was carved out by the Supreme Court of Canada’s decision in Mills should lead to a different conclusion in this case. On the facts of this case, prior authorization would have been required for the police to carry on their deceptive correspondence with the appellant. Nonetheless, and despite this error, the record supports the trial judge’s finding that the search was justified by the exigent circumstances doctrine. Consequently, although the appellant had a reasonable expectation of privacy in his electronic communications, there was no breach of his s. 8 Charter rights.

(a) The application of Marakah

[35] Marakah involved the warrantless inspection of text message communications about the illegal sale of firearms. As noted above, McLachlin C.J. confirmed that, in order to establish a reasonable expectation of privacy, a Charter claimant must demonstrate a subjective expectation of privacy that is objectively reasonable.

[36] Before addressing the objective component of the test, I can briefly deal with the Crown’s challenge to the trial judge’s finding that the appellant had a subjective expectation of privacy. The Crown criticizes the appellant’s evidence as not being capable of supporting such a finding. I disagree. This finding hinged on a credibility assessment. The trial judge was entitled to accept the appellant’s evidence on this issue. Moreover, in Marakah, at para. 22, McLachlin C.J. confirmed the Court’s previous holdings that a rights claimant does not face a “high hurdle” at this stage: R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 37, and R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 20. See Steve Coughlan, “Grappling with Normative Notions of Privacy: R. v. Mills” (2019) 54 C.R. (7th) 61 who writes, at p. 65: “Indeed, there is an argument that because of Jones the subjective portion of the test will almost always be met” (emphasis in the original).

[37] Returning to the objective component, McLachlin C.J. engaged in a rich discussion of the privacy features of text messaging. She recognized, at para. 33, that “[i]ndividuals may even have an acute privacy interest in the fact of their electronic communications” because “[t]he medium of text messaging broadcasts a wealth of personal information capable of revealing personal and core biographical information about the participants in the conversation” (emphasis in the original). She emphasized that “[t]he focus is not on the actual contents of the messages the police have seized, but rather on the potential of a given electronic conversation to reveal personal or biographical information”: at para. 32.

[38] Text messaging may reveal an individual’s personal and lifestyle choices, including their daily activities, things “that they would never reveal to the world at large”: at para. 36. This might include criminal activities. Communications of this type may also be enveloped in a reasonable expectation of privacy because, “[t]o be meaningful, the s. 8 analysis must be content neutral”: at para. 48. This approach has been followed for over three decades, since the decision in R. v. Wong, [1990] 3 S.C.R. 36. See Coughlan, at pp. 63-64 and Chelsey Buggie, “Talking to Strangers: A Critical Analysis of the Supreme Court of Canada’s Decision in R. v. Mills” (2021) 44 Man. L.J. 108, at p. 119.

[39] As noted above, the trial judge found that the appellant’s asserted expectation of privacy was not reasonably held because the exchange between the appellant and the Gammie phone: “did not reveal any personal or biographical information about him nor was it likely to. These are mundane comments that, in another age, could have been overheard on a public bus. Mr. Campbell could not expect that they would be private”: at para. 44. Respectfully, this conclusion cannot withstand scrutiny.

[40] First, it is difficult to see how the comments were “mundane” – they were about a drug deal, something one might make efforts to prevent from being overheard on a bus.

[41] Second, this finding is undermined by the trial judge’s conclusion about the appellant’s subjective expectation of privacy, which resonates in a normative tone: “I can presume that conversations between two drug traffickers would, as between the two of them, be expected to be kept private”: at para. 39.

[42] Ultimately, the trial judge’s conclusion cannot be reconciled with Marakah. It was the fact of the conversation that ought to have been the focus of the trial judge’s analysis. As McLachlin C.J. said, at para. 54:

The mere fact of the electronic conversation between the two men tended to reveal personal information about Mr. Marakah’s lifestyle; namely, he was engaged in a criminal enterprise…. This the police could glean when they had done no more than scrolled through Mr. Winchester’s messages and identified Mr. Marakah as one of his correspondents.

[43] This case is very similar to the situation in Marakah, except that the messages in this case were about drugs, not firearms. But this distinction is immaterial. The privacy interests are the same. In R. v. Ahmad, 2020 SCC 11, 63 C.R. (7th) 1, a drug entrapment case, Karakatsanis, Brown and Martin JJ. (writing for the majority) referenced Mills and commented on the privacy interests in virtual “spaces”, at para. 40: “Drug dealing over the phone may well be difficult to detect, but individuals also have considerable privacy interests in their phones that must be protected from arbitrary state intrusion.”

[44] The respondent submits that any potential for finding a reasonable expectation in this case is precluded by the fact that the appellant was using “Dew’s” phone for the specific purpose of completing a drug transaction, after which he was to return the phone to “Dew.” Presumably, “Dew” would have access to the text message exchange between the appellant and Gammie.

[45] I do not accept this submission, which rests 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: at para. 38. As she explained at para. 41:

The cases are clear: a person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it. Even where “technological reality” (Cole, at para. 54) deprives an individual of exclusive control over his or her personal information, he or she may yet reasonably expect that information to remain safe from state scrutiny. Mr. Marakah shared information with Mr. Winchester; in doing so, he accepted the risk that Mr. Winchester might disclose this information to third parties. However, by accepting this risk, Mr. Marakah did not give up control over the information or his right to protection under s. 8. [Emphasis added.]

[46] For similar reasons, the fact that “Dew” may have eventually been privy to the messages did not undermine the reasonableness of the appellant’s expectation that his text messages would remain safe from state scrutiny.

[47] In conclusion, a proper application of Marakah ought to have resulted in the trial judge finding that the appellant had a reasonable expectation of privacy in his text messages. But this does not end the matter. The Crown submits that the Supreme Court’s decision in Mills changes the landscape and leads to the conclusion that s. 8 of the Charter was not engaged in this case.

(b) Implications of Mills

[48] Mills involved an undercover operation in which a police officer posed online as a 14-year-old girl, “Leann”, as part of an investigation into internet luring. Through Facebook and Hotmail, Mills exchanged many messages with “Leann”. This led to an arranged meeting where Mills was arrested and charged with internet luring under s. 172.1 of the Criminal Code.

[49] At trial, Mills argued that the police operated this sting operation without a judicial authorization under s. 184.2 of the Criminal Code, and that the electronic preservation of the messages exchanged with “Leann” (through a program called “Snagit”) constituted an unlawful search and seizure. The trial judge found that the appellant’s communications were intercepted and required an authorization and that his s. 8 rights were further violated by the use of Snagit. However, he declined to exclude the evidence under s. 24(2) of the Charter. The Newfoundland and Labrador Court of Appeal held that there was no interception and, because Mills had no reasonable expectation of privacy in his communications, s. 8 was not violated: R. v. Mills, 2017 NLCA 12.

[50] The Supreme Court of Canada (Martin J., dissenting) dismissed the appeal. The majority concluded that there was no violation of Mills’ s. 8 rights. However, two separate judgments formed the majority – one written by Brown J., and the other by Karakatsanis J. [2]

(i) The approach of Brown J.

[51] In evaluating whether Mills had a reasonable expectation of privacy in the messages, Brown J. (Abella and Gascon JJ., concurring) employed the “totality of circumstances” framework endorsed in earlier decisions, such as Marakah. He identified the subject matter of the search as the electronic communications and accepted that Mills had a direct interest in them: at paras. 14-16. Brown J. agreed with the Crown’s concession that Mills had a subjective expectation of privacy, at para. 17: “Users expect that their text messages or (as here) their functional equivalent will remain private: R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 34.”

[52] Brown J. found that Mills’ expectation of privacy was not objectively reasonable. For Brown J., two characteristics of this case were critical: the relationship between the communicants and the investigative technique used by the police, and: at para 20.

[53] First, Mills was communicating with someone he believed to be a child, who was a stranger to him. Applying the normative approach to privacy developed in the Court’s earlier decisions (citing R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432), Brown J. held that “adults cannot reasonably expect privacy online with children they do not know. That the communication occurs online does not add a layer of privacy, but rather a layer of unpredictability”: at para. 23.

[54] Thus, Brown J. acknowledged that many adult-child relationships are entitled to s. 8 protection, however:

[T]he relationship between Mills and “Leann” is not one of them, if expectations of privacy are to reflect a normative (rather than a purely descriptive) standard. The conclusion may or may not apply to other types of relationships, depending on the nature of the relationship in question and the circumstances surrounding it at the time of the alleged search: at para. 26. [Emphasis added.]

[55] Moreover, and equally important to Brown J.’s finding that Mills lacked an objective expectation of privacy, the police used an investigative technique that permitted them to know from the outset that Mills believed he was conversing with a child who was a stranger: at para 24. The police had created a fictitious person. Consequently, there was no risk of intruding on authentic private communications. At para. 28, Brown J. held that, “[t]his also distinguishes this case from the impersonation-through-informer technique employed in [R. v. Duarte, [1990] 1 S.C.R. 30].”

(ii) The approach of Karakatsanis J.

[56] Karakatsanis J. (Wagner C.J. concurring) approached the issue from a different and broader perspective. She held that s. 8 of the Charter did not apply because the police were involved in an undercover operation. As she explained, at para. 36:

In my view, when undercover police officers communicate in writing with individuals, there is no “search or seizure” within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms. This is because it is not reasonable to expect that your messages will be kept private from the intended recipient (even if the intended recipient is an undercover officer). Further, the police conduct does not amount to a search or seizure – the police did not take anything from the accused or intrude upon a private conversation; the undercover officers simply received messages sent directly to them. [Emphasis added.]

I will have more to say about the underscored passage below.

[57] Karakatsanis J. stressed that s. 8 does not prevent the police from communicating with individuals in the course of undercover investigations (Duarte and R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535). She observed, at para. 45:

The fact that the conversation took place in a written form, rather than orally as in Duarte and Fliss, does not transform it into a search or seizure. For example, if Mills had sent a letter or passed a note to an undercover officer, s. 8 would not require the officer to get a warrant prior to reading it.

[58] Moreover, and resonant of Brown J.’s analysis, she held that by communicating online with a person he had never met, Mills opened himself up to the possibility that the other person was a police officer: at para. 50. However, Karakatsanis J. added the following important caveat, at para. 57: “My conclusion that s. 8 is not engaged in this case does not mean that undercover online police operations will never intrude on a reasonable expectation of privacy” (emphasis in original).

(c) Discussion

[59] I am not persuaded that either of the two approaches in Mills should alter the application of Marakah to the facts of this case.

[60] Marakah was decided only two years before Mills. It figured prominently in the reasons of both Brown J. and Karakatsanis J., neither of whom attempted to distance themselves from the earlier decision. Indeed, Brown J. described his reasons in the following way, at para. 30: “The proposition that I advance is a modest one: to repeat, it is that Mills cannot establish an objectively reasonable expectation of privacy in these particular circumstances, where he conversed with a child online who was a stranger to him and, most importantly, where the police knew this when they created her” (emphasis in original).

[61] Similarly, in the course of her reasons, Karakatsanis J. at para. 49 cites Marakah in support of the proposition that, “viewing a text message conversation between two other parties, without their consent, also engages s. 8 of the Charter.”

[62] In my respectful view, Mills carved out an exception in circumstances where the electronic communications themselves constitute a crime against the recipient – in that case, the victimization of children. This is far removed from this case. The circumstances of this case (communications about the sale of drugs) are comparable to Marakah (communications about the sale of guns). The digital context, along with the operative privacy interests and law enforcement imperatives, are exactly the same.

[63] In Mills, Brown J. emphasized the importance of the relationship between the two communicants. This led him to say, at para. 54 above, that his conclusion “may or may not apply to other types of relationships, depending on the nature of the relationship in question and the circumstances surrounding it at the time of the alleged search.” The appellant in this case was communicating with neither a child nor a stranger. And it cannot be said, as was the case in Mills, that the police knew the nature of Gammie and “Dew’s” relationship from the outset.

[64] Similarly, I do not accept the Crown’s submission that the reasons of Karakatsanis J. impel a different result. At the core of her analysis is the principle that the protections afforded to a communicant derived from Marakah do not apply to undercover operations. The Crown submits that, although the police in this case were not involved in a sting operation, their investigation became an undercover operation when the phone lit up with the incoming messages from “Dew.” The police, in an undercover capacity, were simply speaking with a target; it made no difference that the mode of communication was digital. It is the appellant’s position that the police were not involved in an undercover operation; they simply engaged in opportunistic deception when they intruded on an ongoing digital conversation between two citizens.

[65] In my view, little turns on whether the police were officially working in an undercover capacity when they communicated with the appellant. They were certainly not undercover when they arrested Gammie and his female companion outside of the apartment building. As their investigation unexpectedly turned to the appellant, the police decided to engage in a deception by pretending to be Gammie. In this sense, the investigation acquired some features of an undercover operation as it related to the investigation of the appellant.

[66] However, characterizing the actions of the police one way or the other does not resolve the s. 8 issue because the police (a) intruded on private communications between two citizens (b) which generated a permanent record of these communications.

[67] The Crown relies on a number of cases in which the police have answered an arrestee’s phone and communicated with an unsuspecting caller. To be sure, the technique is well-known, and it is not necessarily improper. For example, this scenario played out in R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, a leading hearsay case. However, none of the cases relied upon by the Crown definitively resolve the question of whether an unsuspecting caller enjoys a reasonable expectation of privacy in these circumstances: see R. v. Singh (1998), 127 C.C.C. (3d) 429 (B.C.C.A.), R. v. Blackwood, 2021 ONSC 8411, R. v. Edwards (1994), 91 C.C.C. (3d) 123 (Ont. C.A.), aff’d, [1996], 1 S.C.R. 128, and Beairtso.

[68] With the exception of Beairsto (which turned on the accused’s failure to establish a subjective expectation of privacy), none of these cases involved the interception and recording of digital conversations. As the Supreme Court of Canada has recognized, it is one thing for undercover officers to speak to individuals during an investigation; it is quite another to make a permanent record of that interaction. In Duarte, at p. 57, LaForest J. wrote that “[a] conversation with an informer does not amount to a search and seizure within the meaning of the Charter. Surreptitious electronic interception and recording of a private communication does.” In Fliss, Arbour J. said, at para. 12, “a conversation with an informer, or a police officer, is not a search and seizure. Only the recording of such conversation is.”

[69] I appreciate that Karakatsanis J. distinguished Duarte and Fliss by holding that they do not apply when an accused person chooses to communicate by electronic means. The recording is not surreptitious in these circumstances because it is the suspect or target who is responsible for creating a record of the exchange: at para. 48. However, and with respect, it is unclear to what extent the other members of the Court accepted this line of reasoning. In his plurality reasons, Brown J. could have simply adopted Karakatsanis J.’s broad approach, but he did not. Instead, as noted at para. 55 above, Brown J. distinguished Duarte, but for reasons that appear to be different and narrower than Karakatsanis J.: see Michelle Biddulph, “The Privacy Paradox: Marakah, Mills, and the Diminished Protections of Section 8” (2020), 43 Man. L.J. 161, at p. 183. In her dissenting reasons, Martin J. strongly disagreed with this analysis, holding that Duarte and Fliss continue to apply in the context of digital communications: at paras. 86-108.

[70] Nonetheless, I repeat what Karakatsanis J. said at para. 57 of her reasons: “My conclusion that s. 8 is not engaged in this case does not mean that undercover online police operations will never intrude on a reasonable expectation of privacy” (emphasis in the original). She further emphasized at para. 36 that the police conduct in that case did not amount to a search or seizure because “the police did not take anything from the accused or intrude upon a private conversation; the undercover officers simply received messages sent directly to them.”

[71] Whether or not the officers in this case were acting in an undercover capacity, they did “intrude upon a private conversation”. They inserted themselves into a conversation that was already underway, between two real people with a pre-existing relationship, essentially hi-jacking the identity of one of the participants. It was far more intrusive than merely inspecting a conversation between two other individuals; the police became part of the exchange, but unbeknownst to the appellant.

[72] In somewhat similar circumstances, Davies J. in R. v. Mootoo, 2022 ONSC 367, a sexual assault case, distinguished Mills by holding that the accused and the complainant were not strangers (at para. 43) and that “[t]he fact that the police impersonated a real person and insinuated themselves into an existing relationship enhances Mr. Mootoo’s claim to a reasonable expectation of privacy”: at para. 46.

[73] I return to the point made earlier that Mills appears to have created an exception to the broad holding in Marakah. The majority in Mills was concerned with the weaponization of the internet to victimize children. Karakatsanis J. recognized that undercover law enforcement efforts in this context will be thwarted by a prior authorization requirement – the police will be unable to obtain prior authorization until the targets of such a sting operation are identified. Only then will there be evidence that a crime may have been committed. Consequently, it is impractical to obtain a warrant: at paras. 36-65.

[74] That concern does not arise in this case. Upon reading the initial “Dew” messages, the police had reasonable grounds to apply for a warrant. However, obtaining a warrant was impracticable in the exigent circumstances that were quickly unfolding at the time.

(d) There were exigent circumstances

[75] 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.

[76] The trial judge thoroughly reviewed the evidence that pertained to this issue. A key point concerned the type of drug that the police thought was in play at the time. At trial, the Crown submitted that exigent circumstances would only exist if the officers believed that the appellant was in possession of fentanyl. The trial judge found at paras. 92-93: “I find that, other than Officer Connelly’s error, all of the evidence supports a finding that the officers were dealing with a transaction related to heroin, likely laced with fentanyl.… Their credibility was not attacked in cross-examination. There is no reason to reject their evidence.”

[77] Having made this finding, the trial judge described the legal framework for determining whether exigent circumstances had been established. He quoted from the leading case of R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, which addressed the search powers granted to police officers by s. 11(7) of the CDSA. The powers are available when “exigent circumstances” make it “impracticable to obtain” a warrant. Brown J. said, at para. 37:

In sum, I conclude that, in order for a warrantless entry to satisfy s. 11(7), the Crown must show that the entry was compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety. Further, this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives.

[78] Applying Paterson, the trial judge reasoned as follows, at para. 100:

On this authority, I find that there were exigent circumstances in this case. Without immediate action, the transaction and the drugs were at risk. The texts show that “Dew” was already impatient. At that time of day, only a telewarrant would have been available, but in any event it would likely arrive too late to complete this transaction. The likelihood that the transaction involved fentanyl and its dramatic effects on the community makes this a matter of public safety. [Emphasis added.]

[79] I see no error in the trial judge’s analysis. As Fairburn A.C.J.O. wrote in R. v. Bakal, 2021 ONCA 584, 157 O.R. (3d) 401, at para. 20: “The exigent circumstances doctrine has deep roots in the common law and statute.” In addition to s. 11(7) of the CDSA, see the powers created in ss. 487.11 and 529.3 of the Criminal Code.

[80] Exigent circumstances may justify a warrantless search when there is an imminent threat to the police or public safety, or the imminent destruction of evidence: R. v. Atwima, 2022 ONCA 268, 161 O.R. (3d) 481, at para. 139 and R. v. Kelsy, 2011 ONCA 605, 280 C.C.C. (3d) 456, at paras. 24-27. See also R. v. Grant, [1993] 3 S.C.R. 223, at p. 243; R. v. Feeney, [1997] 2 S.C.R. 13, at para. 52; and R. v. Godoy, [1999] 1 S.C.R. 311.

[81] In this case, it is not disputed that, if the proper conditions were met, the doctrine would be operative. However, the appellant submits that the trial judge’s analysis of this issue was flawed and his reasons were inadequate. I do not accept this submission.

[82] The Crown only seeks to justify the application of the exigent circumstances doctrine on the basis of public safety considerations. The appellant submits that the passage quoted above is ambiguous as to whether the urgency involved the preservation of evidence or whether the trial judge was focused on public safety. He also submits that the trial judge’s conclusion was speculative in nature.

[83] In my view, it is clear from the underscored portion in the excerpt above that the trial judge was focused on public safety. This was a finding that was available to him on the evidence. It was open to the trial judge to accept the evidence of the officers that they believed that, 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. The trial judge found that this, combined with the notoriously harmful nature of fentanyl (see R. v. Parranto, 2021 SCC 46, 75 C.R. (7th) 217 and R. v. Olivedi, 2021 ONCA 518, 157 O.R. (3d) 583), amounted to exigent circumstances. Although the trial judge’s conclusion relied on some contingencies, it was not unduly speculative, nor was it unreasonable.

[84] This does not end the matter. As Brown J. said at para. 34 in Paterson: “Even where exigent circumstances are present, however, they are not, on their own, sufficient to justify a warrantless search of a residence under s. 11(7). Those circumstances must render it “impracticable to obtain a warrant.” This important qualifier acts as a brake on police action. Mere convenience is not sufficient to proceed without a warrant. This limitation was respected in this case. In the passage cited above, the trial judge found that immediate action was required. In other words, it was impracticable to obtain a warrant, even a telewarrant (as in Bakal, at paras. 28-29). Again, this finding was open to the trial judge to make.

(e) Conclusion

[85] The appellant’s rights under s. 8 of the Charter were not violated by the actions of the police officers. In the circumstances, it is not necessary to address the trial judge’s conclusions under s. 24(2), which were made in the alternative in any event.

[86] I would dismiss this ground of appeal.

D. The verdicts were reasonable

[87] This ground of appeal arises from the fact that the Crown proceeded on particularized counts – counts #1 and #3 pertained to heroin, whereas counts #2 and #4 related to fentanyl. The appellant submits that, in these circumstances, the Crown was required to prove that the drugs seized from the appellant were indeed heroin and fentanyl. He contends that the trial judge erred in approaching this actus reus issue by relying on a line of cases that related to proof of the mens rea for drug offences. Moreover, he submits that the Crown failed to prove that the heroin and fentanyl that was seized was derived from the search of the appellant, and not Gammie. This was essentially an argument about the lack of continuity.

[88] It was conceded at trial that the appellant knowingly possessed a controlled substance for the purpose of trafficking. At issue was the question of what controlled substance the appellant possessed. When Gammie was arrested, he was searched near the vehicle he tried to get into. The seized items were taken back into Gammie’s apartment where P.C. Orok communicated with the appellant by text message.

[89] When the appellant was arrested and searched upon his arrival at Gammie’s apartment, P.C. Orok located a wrapped, oval package which he believed to be heroin. He handed this item to Sgt. Bair, who returned it to P.C. Orok no more than five minutes later. Once at the police station, the package was opened, processed, and weighed (14.33 grams). Subsequent testing by Health Canada revealed that the substance tested as both heroin and fentanyl.

[90] As with his Charter ruling, the trial judge provided thorough reasons for judgment on the trial proper. He carefully reviewed the evidence of the police officers; no evidence was adduced by the appellant at trial. The trial judge responded to the appellant’s contention that the Crown had failed to establish continuity. The trial judge considered all of the police evidence. He addressed the contention that P.C. Orok had mishandled the items seized when he was processing them at the police station. He rejected this submission and came to the following conclusion, at para. 154: “With respect to what was found at the scene relating to both Mr. Gammie and Mr. Campbell, there is nothing to reject Orok’s evidence that he maintained the exhibits as he should. There is nothing in evidence to raise the defence theory beyond speculation.” The trial judge ultimately concluded, at para. 159:

I can find no rational basis to reject the evidence that the substance taken from Mr. Campbell at the time of his arrest was the same substance analyzed and found to be heroin and fentanyl. I find that the seized substance was heroin and fentanyl.

[91] There is no basis to upset this finding on appeal. It followed from a probing review of the evidence of all of the police officers involved in this investigation. The appellant admitted to being in possession of the package seized from him. The results from Health Canada proved the presence of heroin and fentanyl. The trial judge’s conclusion on the continuity issue completed the requirements for finding that the actus reus of all four offences had been proved. This is sufficient to dispose of this ground of appeal.

E. The appeal against sentence

[92] As described at the beginning of these reasons, the appellant was found guilty of two offences each in relation to heroin and fentanyl. In accordance with Kienapple v. The Queen, [1975] 1 S.C.R. 729, the trial judge conditionally stayed the fentanyl counts.

[93] At the time of sentencing, the appellant was 41 years old. He has a lengthy criminal record with a long youth court record. The appellant and his partner of 20 years at the time have four children, one who attended university.

[94] The Crown submitted that the appellant should serve a sentence of eight years’ imprisonment. The appellant requested a conditional sentence of imprisonment followed by three years of probation.

[95] The trial judge determined that a global sentence of six years’ imprisonment was appropriate. After deducting credit for time spent in pre-sentence custody and assessing so-called “Downes credit” (see R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.)), he sentenced the appellant to five years and eight months: R. v. Campbell, 2020 ONSC 6605.

[96] The appellant submits that the sentence is unfit because the trial judge erred by treating the presence of fentanyl in the drugs possessed by the appellant as an aggravating factor. He relies on the fact that it was never established what proportion of the 14.33-gram package seized from the appellant was fentanyl – it could have been nothing more than a trace amount.

[97] As the Crown says at para. 93 of its factum, “[t]he sad reality is that many drugs, including heroin, are often cut with fentanyl. Indeed, the evidence of several officers in this case highlights this grim reality in Guelph and beyond.” Sentencing judges have made this observation and have treated the presence of fentanyl as an aggravating factor: see R. v. Jenkins, 2018 ONSC 5078, at paras. 50-52 and R. v. Bedi, 2019 ONSC 1612, at paras. 44-47.

[98] The appellant’s contention would appear to be grounded in his claim that, because he was unaware that the package contained fentanyl, it would be unfair to take this into account on sentence. This submission overlooks the fault requirements for offences concerning the possession of controlled substances. The Crown need not prove knowledge (or wilful blindness) of a specific controlled substance as long as it proved that the accused knew or was wilfully blind to the fact that the package contained a controlled substance: R. v. Williams, 2009 ONCA 342, 95 O.R. (3d) 660, at para. 19. Indeed, it was conceded by the appellant at trial that he knew he was in possession of a controlled substance.

[99] Whether the appellant knew that the package contained fentanyl does not diminish the threat to the community posed by the substance that he possessed. I agree with the following words of the Court of Appeal of British Columbia in R. v. Lloyd, 2019 BCCA 128, in which Stromberg-Stein J.A. said, at paras. 27-29:

In my view, an offender assumes the risk of the presence of fentanyl when selling illicit drugs. I agree with the judge that whether Mr. Lloyd specifically knew that the heroin he was selling contained fentanyl, either he should have known or he was wilfully blind and was willing to take the risk of selling fentanyl in the heroin.

In my opinion, the judge correctly identified, as an aggravating factor in sentencing, that the presence of fentanyl in the heroin impacted the seriousness of the nature and quality of the drugs involved in the offences. I would not accede to this argument.

[100] The trial judge did not err in treating the presence of fentanyl as an aggravating factor.

[101] More generally, the trial judge imposed a sentence that was fit in the circumstances. As he said at para. 56 of his Reasons for Sentence: “In summary, the aggravating factors are that the substance being trafficked is 14.33 grams of heroin, laced with fentanyl, for profit only, by a mid-level trafficker with a lengthy but dated criminal record.” Balanced against the admittedly few mitigating factors in this case, the sentence imposed was fit.

F. Disposition

[102] I would dismiss the appeal from conviction and sentence.

Released: September 27, 2022 “P.D.L.” “G.T. Trotter J.A.” “I agree. P. Lauwers J.A.” “I agree. L.B. Roberts J.A.”

Footnotes:

[1] During the hearing of the appeal, the appellant’s counsel contended that the appellant and “Dew” were one and the same person. This position is contradicted by the appellant’s evidence on the voir dire. The trial judge proceeded on the basis that the appellant was not “Dew”. I take the same approach.

[2] In separate, brief reasons, Moldaver J. approved of the approaches of Brown J. and Karakatsanis J. as “sound in law” (at para. 66) and agreed that the appeal should be dismissed. As a result of this concurrence, Brown J.’s judgment enjoyed the support of three judges (whereas Karakatsanis J. was supported by two), making his the plurality judgment.