Supreme Court of Canada

Appeal Heard: March 21, 2024 Judgment Rendered: December 6, 2024 Docket: 40465

Between: Dwayne Alexander Campbell Appellant

and

His Majesty The King Respondent

— and —

Attorney General of Ontario, Director of Criminal and Penal Prosecutions, Attorney General of Alberta, National Council of Canadian Muslims, Criminal Lawyers' Association (Ontario), Canadian Civil Liberties Association, Criminal Trial Lawyers' Association, British Columbia Civil Liberties Association, Trial Lawyers Association of British Columbia and Independent Criminal Defence Advocacy Society Interveners

Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ.

Reasons for Judgment: (paras. 1 to 146) Jamal J. (Wagner C.J. and Kasirer and O'Bonsawin JJ. concurring)

Concurring Reasons: (paras. 147 to 167) Rowe J.

Concurring Reasons: (paras. 168 to 237) Côté J.

Joint Dissenting Reasons: (paras. 238 to 358) Martin and Moreau JJ. (Karakatsanis J. concurring)

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

Indexed as: R. v. Campbell

2024 SCC 42

File No.: 40465.

2024: March 21; 2024: December 6.

Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ.

on appeal from the court of appeal for ontario

Headnote

Constitutional law — Charter of Rights — Search and seizure — Text message conversation — Reasonable expectation of privacy — Exigent circumstances — Police using cellphone seized during arrest of drug dealer to impersonate him and continue text message conversation between him and accused without obtaining warrant — Police arresting accused upon delivery of drugs arranged during text message conversation — Whether accused had reasonable expectation of privacy in text message conversation — Whether warrantless search justified by law — Canadian Charter of Rights and Freedoms, s. 8 — Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 11(7).

Police lawfully seized a cellphone during a search incident to the arrest of G, a known drug dealer. A few minutes after G's arrest, four text messages from a sender, D, lit up the lock screen of the phone, appearing to offer to sell drugs to G. Over the next 2 hours and 15 minutes, the police, without a warrant, replied to the texts by impersonating G and encouraged the sender to come to G's residence to deliver the drugs. When the accused came to G's residence that evening, he was arrested and found in possession of heroin laced with fentanyl and was charged with drug trafficking and possession offences. The accused claimed that he did not send the first four texts and that D had given him the phone to arrange the delivery of the drugs to G. However, the accused did acknowledge that he sent and received the later texts about the drug delivery to G.

The accused applied to exclude the texts from evidence. The trial judge found that because the accused did not have a reasonable expectation of privacy in the texts, he lacked standing to argue that his s. 8 Charter rights had been infringed. The trial judge added that even had he concluded that the accused had standing, the warrantless search would have been justified by exigent circumstances under s. 11(7) of the Controlled Drugs and Substances Act ("CDSA"). He also found that the police had not "intercepted" a private communication under Part VI of the Criminal Code and that the evidence should not be excluded under s. 24(2) of the Charter. The Court of Appeal dismissed the accused's appeal, but found that the accused did have standing to challenge the search. The Court of Appeal upheld the trial judge's conclusion that the warrantless search was justified by exigent circumstances.

Held (Karakatsanis, Martin and Moreau JJ. dissenting): The appeal should be dismissed.

Per Wagner C.J. and Kasirer, Jamal and O'Bonsawin JJ.: The accused had a reasonable expectation of privacy in his text message conversation with the user of G's phone and had standing to challenge the search under s. 8 of the Charter. The warrantless search of the accused's text message conversation was justified by "exigent circumstances" that made it "impracticable" to obtain a warrant under s. 11(7) of the CDSA. There was no "interception" of a private communication under Part VI of the Criminal Code. Therefore, the police did not infringe the accused's right under s. 8 of the Charter and there is no need to address whether to exclude the evidence under s. 24(2) of the Charter.

The main purpose of s. 8 of the Charter, which guarantees that everyone has the right to be secure against unreasonable search or seizure, is to protect the right to privacy from unjustified state intrusion. A claimant seeking standing to argue that their rights under s. 8 were infringed must show that they subjectively expected the subject matter of the search would remain private, and that their subjective expectation was objectively reasonable in the totality of the circumstances.

First, when the state examines text messages, the subject matter of the alleged search is properly characterized as the electronic conversation between two or more people. The subject matter of the search includes the existence of the conversation, the identities of the participants, the information shared, and any inferences about associations and activities that can be drawn from that information.

There is no closed or definitive list of factors relevant to whether a claimant's subjective expectation of privacy in the subject matter of a search is objectively reasonable. However, the private nature of the subject matter is a critical factor in establishing a reasonable expectation of privacy. Courts must focus on whether the subject matter of the search at issue has the potential or tendency to reveal intimate details about a person's lifestyle and personal choices — their biographical core. The biographical core of personal information includes information which tends to reveal intimate details of the lifestyle and personal choices of the individual and not simply information tending to identify the individual. Personal information which is truly private is information that goes to the biographical core of the individual.

In contrast, the level of control a claimant has over information is not determinative of the question of standing. Control is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to a privacy interest. A person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it. As a result, text message senders can retain a reasonable expectation of privacy in their conversations even after sending them.

Once a claimant has established standing to argue that their rights under s. 8 were infringed, the next step is to determine whether the police acted lawfully, which is relevant to whether the state conduct was unreasonable. A search is reasonable under s. 8 if it is authorized by a reasonable law and conducted in a reasonable manner. However, a warrantless search is presumptively unreasonable, shifting the burden to the state to rebut this presumption by establishing that the search falls within a reasonable exception.

Parliament enacted Part VI of the Criminal Code as a comprehensive regime to address the interception of private communications by balancing the individual right to privacy with the collective need for law enforcement. Under Part VI, s. 184(1)(a) creates an indictable offence punishable by up to five years imprisonment if a person knowingly intercepts a private communication by use of any electro‑magnetic, acoustic, mechanical or other device. Given that Part VI's procedures are intended to preclude the police from intercepting private communications without proper authorization, whether a police investigative technique constitutes an interception has significant consequences. Because the police did not use a device employing an intrusive surveillance technology in this case but simply responded to text messages received on G's phone using the same medium of communication as the accused, their investigative technique was not an interception under Part VI of the Criminal Code.

The police have authority at common law to search a person incident to a lawful arrest and to seize anything in their possession or in the surrounding area of the arrest. This power is extraordinary because it does not require a warrant or reasonable and probable grounds. It simply requires some reasonable basis for what the police did. A search incident to arrest is lawful if: (1) the arrest itself was lawful; (2) the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose connected to the reasons for the arrest; and (3) the nature and extent of the search are tailored to its purpose. The common law power of search incident to arrest does not authorize the police to search Mr. Gammie's phone to conduct an ongoing undercover investigation unrelated to the reasons for Mr. Gammie's arrest.

Section 11(1) of the CDSA authorizes a justice to issue a warrant to search a place for a controlled substance and to seize it. By exception, s. 11(7) authorizes a peace officer to search the place without a warrant, if the conditions for a warrant exist but exigent circumstances make it impracticable to obtain one. Section 11(7) thus has two requirements. First, it must be shown that there were exigent circumstances — meaning urgency calling for immediate police action to preserve evidence, officer safety, or public safety. Second, it must be shown that these circumstances made it impracticable to obtain a warrant.

In the instant case, the four lines of inquiry under s. 8 establish the accused's reasonable expectation of privacy in his text message conversation with who he thought was G. Specifically, in regard to the only disputed point, it has been established that the accused's subjective expectation of privacy was objectively reasonable. The accused's texts to who he thought was G revealed intimate details of his criminal lifestyle and personal choices, which goes to his biographical core. The private nature of the subject matter supports the objectivity of the accused's subjective expectation of privacy.

With respect to the reasonableness of the search, the police's investigative technique of engaging in a text message conversation with the accused from G's phone was not an interception under Part VI of the Criminal Code since the police did not use a device employing an intrusive surveillance technology. They simply responded to text messages received on G's phone, the same medium of communication as the accused. Nevertheless, the warrantless search of the accused's text message conversation was justified under the exigent circumstances doctrine. The trial judge's findings supported a conclusion of exigency: there was an urgent situation involving a suspected drug sale calling for immediate police action; the police suspected the drugs were heroin laced with fentanyl, which posed a grave risk to public safety; and while the circumstances for obtaining a warrant existed, it was impracticable to obtain one.

Per Rowe J.: There is full agreement with Jamal J. in his reasons and in the result. However, a response to the dissenting judges is necessary with regard to their treatment of exigent circumstances and their analysis on whether the evidence should be excluded under s. 24(2) of the Charter.

Section 11(7) of the CDSA authorizes peace officers to conduct a warrantless search if the conditions for a warrant exist, but exigent circumstances render it impracticable to obtain one. Proper effect must be given to the governing precedent on exigent circumstances under s. 11(7) of the CDSA, R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202. Paterson sets out a definitive statement of the doctrine of exigent circumstances, which statement continues to govern.

Under Paterson, one way urgency can arise is when immediate police action is needed to preserve public safety. The facts in this case come within exigent circumstances as described in Paterson. 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 by D of a significant quantity of drugs containing fentanyl. The police could not know how long D would be willing to wait before concluding Mr. Gammie had been arrested or would sell the drugs elsewhere.

With respect to the s. 24(2) Charter analysis, the evidence demonstrates that the police actively turned their mind to the question of judicial authorization before concluding that they had no time to obtain a warrant. While the communications between the police and the accused ultimately extended over two hours, the police had no way to know this. In a volatile and uncertain situation, minutes could matter.

Per Côté J.: The police conduct did not amount to a search for the purposes of s. 8 of the Charter. Applying the totality of the circumstances test and having regard for the normative approach that informs s. 8 Charter jurisprudence and for the factual record in this case, the accused's subjective expectation of privacy in the electronic communications between him and G was not objectively reasonable. Thus, the police did not conduct a "search" within the meaning of s. 8 of the Charter and the accused's rights were not engaged.

The determination of whether the police have conducted a search for the purposes of s. 8 directly hinges on the presence of a claimant's reasonable expectation of privacy within the specific circumstances of the case. Courts must balance sometimes conflicting interests in the privacy necessary for personal dignity and autonomy and the need for a secure and safe society. Not every government examination of information will constitute a search under the Charter.

The police cannot peruse the contents of a phone at liberty and without any limits; however, their actions may be appropriate if they limit and circumscribe the scope of their conduct to the investigation before them. In the instant case, the police were at liberty to view and respond to the four text messages from D that they passively received and observed on G's lawfully seized phone. Indeed, the police appropriately limited the scope of their engagement with the accused to what was necessary for the investigation at hand.

Beyond the undercover nature of the investigation, there are multiple factors that support the conclusion that the accused's subjective expectation of privacy was not objectively reasonable. The first factor is the circumscribed nature and lack of intrusiveness of the police conduct. The second factor is the ownership of and control over the device and the electronic communications therein, which are relevant but not determinative concepts in the context of s. 8 protection. The third factor is the distinction between the circumstances of the present case and those existing in Marakah. The more people that are involved in a conversation and the less control one has over who might see it, the more likely it is that one's subjective expectation of privacy will not be objectively reasonable.

The electronic communications therefore did not reveal any information that implicated the biographical core of the accused, nor were they likely, based on the normative nature of the s. 8 inquiry, to reveal any, given the circumscribed nature of the police investigation.

Per Karakatsanis, Martin and Moreau JJ. (dissenting): The appeal should be allowed, the convictions set aside, and acquittals entered. The warrantless police actions engaged and breached the accused's s. 8 Charter right to be free from unreasonable search and seizure. The police actions cannot be justified by the power to search incident to arrest or exigent circumstances, and the admission of the evidence would bring the administration of justice into disrepute.

The accused had a reasonable expectation of privacy in his electronic communications and his s. 8 Charter right was engaged. The totality of the circumstances remains the correct approach to assessing whether a claimant has a reasonable expectation of privacy, including in cases where there is an undercover aspect to the police conduct. Even if there are features of the investigative technique that one could characterize as undercover, these features must be weighed against all the other circumstances of the case in applying the totality of the circumstances test.

Parliament has set out various ways in which prior judicial authorization may be sought for state action which threatens a person's reasonable expectation of privacy. Here the police did not seek or obtain any such authorization and their warrantless search was therefore a prima facie breach of s. 8, unless they could establish the existence of special circumstances recognized in law as justifying the warrantless search.

First, the warrantless investigative technique was not a search incident to arrest because the police did not conduct it for a valid law enforcement purpose connected to the reasons for the arrest. The power to search incident to arrest does not authorize police to use a lawfully seized cell phone to communicate with another person. G's arrest was not tied to the impending drug transaction with the accused. The police used G's phone not to discover evidence related to G's arrest but to actively induce the commission of a new offence.

Second, the warrantless search by the police was also not justified by the exigent circumstances doctrine, when properly understood in light of its limited purpose and cautious jurisprudential evolution. This doctrine cannot be understood separate from the longstanding normative approach of the law of search and seizure that, whenever feasible, intrusions upon property, privacy and dignity, should be pre‑authorized by an independent arbiter.

Since Parliament codified certain warrantless powers to search in exigent circumstances, and despite the absence of a statutory definition for such circumstances in s. 11(7) of the CDSA and s. 487.11 of the Criminal Code, the requirements for establishing exigent circumstances may be distilled into three elements: the existence of grounds for obtaining a warrant; the existence of exigent circumstances requiring immediate action; and the impracticability of obtaining a warrant in the circumstances. The test of exigency in terms of public safety is whether there is an imminent risk, not merely a possible or theoretical one.

The facts of this case do not establish an imminent safety risk justifying warrantless police action and there were therefore no exigent circumstances that justified the warrantless search. Regardless of whether or not the investigative technique in the instant case could have been authorized by s. 11(7) of the CDSA, which involves a lower standard of exigency than required under more rigorous authorization regimes, there were no exigent circumstances here. There was a two-hour window during which the police communicated with the accused. During this time, the police could have sought judicial authorization.

Under s. 24(2) of the Charter, whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry: (1) the seriousness of the Charter‑infringing state conduct; (2) the impact of the breach on the accused's Charter‑protected interests; and (3) society's interest in the adjudication of the case on its merits. Balancing all three factors, the evidence should be excluded. The seriousness of the police conduct — which involved a legally questionable technique without warrant in the absence of exigent circumstances — and the significant impact on the accused's privacy interests strongly favour exclusion. While the third factor (society's interest in adjudication on the merits) favours admission, that alone cannot tip the balance where the first two factors strongly favour exclusion.

Cases Cited

By Jamal J.

Applied: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; considered: R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Beairsto, 2018 ABCA 118, 68 Alta. L.R. (6th) 207; referred to: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Bykovets, 2024 SCC 6; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531; R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Kelsy, 2011 ONCA 605, 280 C.C.C. (3d) 456; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Hobeika, 2020 ONCA 750; R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. Dussault, 2022 SCC 16, [2022] 1 S.C.R. 306; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 796.

By Rowe J.

Applied: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; referred to: References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175; R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

By Côté J.

Applied: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; considered: R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531; R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520; referred to: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66; CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743; R. v. Hafizi, 2023 ONCA 639, 168 O.R. (3d) 435; R. v. Evans, [1996] 1 S.C.R. 8; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Knelsen, 2024 ONCA 501.

By Martin and Moreau JJ. (dissenting)

R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320; R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544; R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520; R. v. Bykovets, 2024 SCC 6; R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531; R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321; CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 796; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366; R. v. Beaver, 2022 SCC 54; R. v. McColman, 2023 SCC 8; R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142; Crampton v. Walton, 2005 ABCA 81, 40 Alta. L.R. (4th) 28; R. v. Hobeika, 2020 ONCA 750; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. Dussault, 2022 SCC 16, [2022] 1 S.C.R. 306; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220; R. v. Marakah, 2016 ONCA 542, 131 O.R. (3d) 561; R. v. Knelsen, 2024 ONCA 501.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 5(1), (2), 11.

Criminal Code, R.S.C. 1985, c. C‑46, ss. 117.02, Part VI, 183 "electro‑magnetic, acoustic, mechanical or other device", "intercept", "private communication", 184(1), (2), 184.2, 184.4, 185, 186, 188, 487.01, 487.015, 487.016, 487.11, 529.3.

Narcotic Control Act, R.S.C. 1985, c. N‑1 [rep. 1996, c. 19, s. 94].

Authors Cited

Biddulph, Michelle. "The Privacy Paradox: Marakah, Mills, and the Diminished Protections of Section 8" (2020), 43:5 Man. L.J. 161.

Canada. House of Commons. House of Commons Debates, vol. IV, 1st Sess., 29th Parl., May 8, 1973, p. 3538.

Ewaschuk, E. G. Criminal Pleadings & Practice in Canada, 3rd ed. Toronto: Thomson Reuters, 2022 (loose-leaf updated October 2024, release 8).

Fontana, James A., and David Keeshan. The Law of Search and Seizure in Canada, 13th ed. Toronto: LexisNexis, 2024.

Foster, W. F., and Joseph E. Magnet. "The Law of Forcible Entry" (1977), 15 Alta. L. Rev. 271.

Hasan, Nader, et al. Search and Seizure. Toronto: Emond Montgomery, 2021.

Hubbard, Robert W., Mabel Lai and Daniel Sheppard. Wiretapping and Other Electronic Surveillance: Law and Procedure. Toronto: Thomson Reuters, 2024 (loose‑leaf updated October 2024, release 5).

Hutchison, Scott C., et al. Search and Seizure Law in Canada. Toronto: Thomson Reuters, 2024 (loose‑leaf updated October 2024, release 9).

Jochelson, Richard, and David Ireland. Privacy in Peril: Hunter v Southam and the Drift from Reasonable Search Protections. Vancouver: UBC Press, 2019.

MacFarlane, Bruce A., Robert J. Frater and Croft Michaelson. Drug Offences in Canada, 4th ed. Toronto: Thomson Reuters, 2024 (loose‐leaf updated October 2024, release 4).

Penney, Steven. "Consent Searches for Electronic Text Communications: Escaping the Zero‑Sum Trap" (2018), 56 Alta. L. Rev. 1.

Penney, Steven, Vincenzo Rondinelli and James Stribopoulos. Criminal Procedure in Canada, 3rd ed. Toronto: LexisNexis, 2022.

Pomerance, Renee M. "Parliament's Response to R. v. Feeney: A New Regime for Entry and Arrest in Dwelling Houses" (1998), 13 C.R. (5th) 84.

Quigley, Tim. "The Impact of the Charter on the Law of Search and Seizure" (2008), 40 S.C.L.R. (2d) 117.

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Stuart, Don. Charter Justice in Canadian Criminal Law, 7th ed. Toronto: Thomson Reuters, 2018.

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APPEAL from a judgment of the Ontario Court of Appeal (Lauwers, Roberts and Trotter JJ.A.), 2022 ONCA 666, 163 O.R. (3d) 355, 418 C.C.C. (3d) 279, 517 C.R.R. (2d) 338, [2022] O.J. No. 4276 (Lexis), 2022 CarswellOnt 13763 (WL), affirming the convictions of the accused for drug trafficking and possession for the purpose of trafficking. Appeal dismissed, Karakatsanis, Martin and Moreau JJ. dissenting.

Stephen Whitzman and Carson Hurley, for the appellant.

Jennifer Conroy and David Quayat, for the respondent.

Emily Marrocco and Matthew Asma, for the intervener the Attorney General of Ontario.

Lina Thériault and Pauline Lachance, for the intervener the Director of Criminal and Penal Prosecutions.

Christine Rideout, K.C., for the intervener the Attorney General of Alberta.

Mannu Chowdhury and Karine Devost, for the intervener the National Council of Canadian Muslims.

Gerald Chan and Riaz Sayani, for the intervener the Criminal Lawyers' Association (Ontario).

Stephen Aylward, for the intervener the Canadian Civil Liberties Association.

Derek Jugnauth and Tania Shapka, for the intervener the Criminal Trial Lawyers' Association.

Daniel J. Song, K.C., and Veronica Martisius, for the intervener the British Columbia Civil Liberties Association.

Eric V. Gottardi, K.C., and Sarah Pringle, for the intervener the Trial Lawyers Association of British Columbia.

Matthew A. Nathanson and Rachel M. Wood, for the intervener the Independent Criminal Defence Advocacy Society.

Reasons for Judgment

The judgment of Wagner C.J. and Kasirer, Jamal and O'Bonsawin JJ. was delivered by

Jamal J. —

I. Introduction

[ 1 ] At issue in this appeal is whether the police had lawful authority to use the cellphone of an arrested drug dealer without a warrant to continue a text message conversation with a person who appeared to be offering to sell drugs to him — and, ultimately, to lure that person into an arrest.

[ 2 ] To resolve this issue, the following elements must be addressed: (1) when a person has a reasonable expectation of privacy in a text message conversation on another person's phone and thus has standing to argue that their rights under s. 8 of the Canadian Charter of Rights and Freedoms were infringed; (2) when the police's use of a seized cellphone to engage in a text message conversation constitutes a warrantless "search" for the purposes of s. 8; (3) what "exigent circumstances" mean under s. 11(7) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA"); and (4) whether the police's investigative technique in this case constituted an "interception" of a "private communication" under Part VI of the Criminal Code, R.S.C. 1985, c. C‑46.

[ 3 ] Police lawfully seized a cellphone during a search incident to the arrest of Kyle Gammie, a known drug dealer. Minutes later, four texts from a sender police identified as "Dew" lit up the lock screen of Mr. Gammie's phone. Based on their training and experience, the police suspected these texts indicated an offer to sell drugs. Officer Andrew Orok was instructed to reply to the texts, pretending to be Mr. Gammie, in order to arrange the delivery of the drugs to Mr. Gammie's residence. Over the next 2 hours and 15 minutes, the police exchanged 35 texts with the sender, arranging a drug delivery. That evening, the appellant, Dwayne Alexander Campbell, arrived at Mr. Gammie's residence, and he was arrested.

[ 4 ] The appellant, Dwayne Alexander Campbell, claimed that he did not send the first four texts and that another drug dealer named Dew had given him the phone and instructed him to deliver the drugs to Mr. Gammie.

[ 5 ] The trial judge rejected Mr. Campbell's application to exclude the texts from evidence on the basis that the police infringed his rights under s. 8 of the Charter. The trial judge found that Mr. Campbell lacked standing to make this argument because he had no reasonable expectation of privacy in the texts. The trial judge also ruled that even had Mr. Campbell standing, the warrantless search was justified by exigent circumstances under s. 11(7) of the CDSA.

[ 6 ] The Court of Appeal for Ontario accepted that Mr. Campbell had a reasonable expectation of privacy in his text message conversation with who he thought was Mr. Gammie and thus had standing to challenge the search. However, the Court of Appeal agreed with the trial judge that the warrantless search was justified under the exigent circumstances doctrine of s. 11(7) of the CDSA. The Court of Appeal accordingly dismissed Mr. Campbell's appeal.

[ 7 ] I agree with the Court of Appeal that Mr. Campbell had a reasonable expectation of privacy in his text message conversation and had standing to challenge the search.

[ 8 ] Even so, the warrantless search of Mr. Campbell's text message conversation was justified by exigent circumstances under s. 11(7) of the CDSA. There was no "interception" of a private communication under Part VI of the Criminal Code. As a result, the police did not infringe s. 8 of the Charter and there is no need to address whether the evidence should have been excluded under s. 24(2) of the Charter. I would dismiss the appeal.

II. Facts

[ 9 ] On June 13 and 14, 2017, based on information obtained from confidential informers, five members of the Guelph Police Service conducted a surveillance operation targeting drug dealers, including Mr. Gammie. The surveillance involved police monitoring, following, and communicating with each other. One of the officers, Officer Orok, was an undercover officer.

[ 10 ] During the arrest, Mr. Gammie threw two cellphones onto the passenger seat of the car. One of the arresting officers, Officer Brown, picked up both phones. Within a few minutes, four texts lit up the lock screen of one of the phones:

[4:31:23 p.m.] Family I need 1250 for this half tho

[4:50:26 p.m.] Yooo

[4:50:48 p.m.] What you gonna need that cause I don't want to drive around with it

[4:50:59 p.m.] What time you gonna need it

(A.R., at p. 221)

[ 11 ] Officer Brown brought the texts to the attention of Officer Andrew Orok and Sergeant Ben Bair, an experienced drug investigator. Based on his training and experience, Sergeant Bair suspected these texts indicated an offer to sell drugs, likely heroin laced with fentanyl, and that the sender was impatient. He decided that Officer Orok should respond to the texts, pretending to be Mr. Gammie.

[ 12 ] Two other officers also suspected that the drugs involved heroin laced with fentanyl. Officer Orok suspected that the drug deal involved fentanyl based on his training and experience and on the texts. Officer Hunt also suspected fentanyl was involved, based on confidential informer information.

[ 13 ] Sergeant Bair instructed Officer Orok to respond to the texts by pretending to be Mr. Gammie and asking Dew to deliver the drugs to Mr. Gammie's residence.

[ 14 ] Over the next 2 hours and 15 minutes, Officer Orok exchanged 35 texts with Dew about the delivery. He did so directly on Mr. Gammie's phone, without Mr. Gammie's knowledge or consent, and without a warrant. Officer Orok communicated the address of Mr. Gammie's residence, suggested a meeting location and time, and instructed the sender to use Mr. Gammie's apartment building's side door.

[ 15 ] On the voir dire, Mr. Campbell testified that a drug dealer named Dew had given him the cellphone to deliver drugs to Mr. Gammie. He said that Dew had sent the first four texts and that he (Mr. Campbell) had sent the subsequent texts. On this account, Mr. Campbell was merely the courier.

[ 16 ] Just after 7:00 p.m., Mr. Campbell arrived at Mr. Gammie's residence and was arrested. During a search of Mr. Campbell, police found 14.33 grams of heroin mixed with fentanyl and $40 cash. Mr. Campbell was charged with trafficking in heroin and fentanyl and with possession of heroin and fentanyl for the purpose of trafficking.

III. Judicial History

A. Ontario Superior Court of Justice, Voir Dire Ruling (Lemon J.)

[ 17 ] The trial judge held that Mr. Campbell lacked standing to claim that the police violated his rights under s. 8 of the Charter when they read and responded to the texts on Mr. Gammie's phone.

[ 18 ] The trial judge accepted that Mr. Campbell had a subjective expectation of privacy in his text message conversation with the user of Mr. Gammie's phone. However, he found that this subjective expectation was not objectively reasonable for a number of reasons.

[ 19 ] Although this conclusion was sufficient to dismiss Mr. Campbell's arguments under s. 8 of the Charter, the trial judge went on to consider whether the warrantless search was justified by exigent circumstances. He concluded that the police had acted under exigent circumstances under s. 11(7) of the CDSA: the police had reasonable and probable grounds to believe that the exchange of texts involved a drug transaction; the police suspected that the drugs were heroin laced with fentanyl; and the police faced a time-sensitive situation where the seller was impatient, making it impracticable to obtain a warrant.

[ 20 ] The trial judge accepted that the police searched Mr. Gammie's phone and rejected the Crown's submission that the police's engagement with Mr. Campbell was a search incident to the arrest of Mr. Gammie.

[ 21 ] The trial judge ruled that the warrantless search of Mr. Gammie's phone was justified by exigent circumstances under s. 11(7) of the CDSA and that it was therefore lawful.

[ 22 ] The trial judge rejected Mr. Campbell's argument that the police had undertaken an "interception" of his electronic communications pursuant to Part VI of the Criminal Code, as the police had not used an electronic device.

[ 23 ] Nevertheless, the trial judge accepted that the police breached Mr. Campbell's rights under s. 8 of the Charter when they scrolled through and took photographs of the texts on Dew's phone upon Mr. Campbell's arrest. (This point was not pursued before the Court of Appeal or this Court. As noted, the police later obtained a valid warrant to search and download the contents of Dew's phone.)

[ 24 ] Finally, the trial judge held that even had he found each of the claimed breaches of Mr. Campbell's rights under s. 8, he would not have excluded the texts from evidence under s. 24(2) of the Charter.

[ 25 ] With the texts and drugs admitted into evidence, Mr. Campbell was convicted of trafficking in heroin and fentanyl and possession of heroin and fentanyl for the purpose of trafficking, contrary to s. 5(1) and (2) of the CDSA. He was sentenced to six years of imprisonment, less credit of four months for restrictive bail conditions and pre-trial custody.

B. Court of Appeal for Ontario, 2022 ONCA 666, 163 O.R. (3d) 355 (Trotter J.A., Lauwers and Roberts JJ.A. Concurring)

[ 26 ] The Court of Appeal dismissed Mr. Campbell's appeals from conviction and sentence. The court agreed with the trial judge's conclusion that there was no breach of s. 8 of the Charter, but did so for different reasons. It also dismissed the other grounds of appeal.

[ 27 ] The court ruled that Mr. Campbell had standing to argue that the police violated his rights under s. 8. Applying Marakah, the court accepted that Mr. Campbell had an objectively reasonable expectation of privacy in the circumstances. The comments made in Mr. Campbell's texts were not "mundane" but rather revealed "a lifestyle of criminal activity and other facts that he would have wanted to keep private, namely that he engaged in drug trafficking to support himself" (para. 47).

[ 28 ] The court also rejected the Crown's argument that R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320 — in which the police had posed online as a 14-year-old girl as part of an internet child luring investigation — should alter the application of Marakah to this case. The court interpreted Mills as not "displac[ing] the approach to reasonable expectation of privacy described in Marakah" (para. 49).

[ 29 ] Finally, the court held that it was open to the trial judge to find no breach of s. 8 of the Charter because the police had acted under exigent circumstances. The police had to act immediately to protect public safety and it was impracticable to obtain a warrant. The police officers believed that they were dealing with heroin laced with fentanyl and that the drugs would be trafficked imminently to members of the public.

[ 30 ] Counsel for Mr. Campbell did not press in oral argument before the Court of Appeal whether the police had conducted an "interception" under Part VI of the Criminal Code, and as a result, the court did not address this point.

[ 31 ] Having found no s. 8 breach, the court did not address whether to exclude the evidence under s. 24(2) of the Charter.

IV. Issues

[ 32 ] This appeal raises the following questions:

1. Does Mr. Campbell have standing to allege that the police conducted a "search" that violated his rights under s. 8 of the Charter?

2. If yes, was the warrantless search of Mr. Campbell's text message conversation lawful? Specifically:

   a. Was the search authorized by the police's common law power to search incident to arrest?

   b. Was the search authorized by the exigent circumstances doctrine under s. 11(7) of the CDSA?

   c. Did the police's investigative technique constitute an "interception" of a "private communication" under Part VI of the Criminal Code?

3. If there was an infringement of Mr. Campbell's rights under s. 8, should the evidence be excluded under s. 24(2) of the Charter?

V. Analysis

A. Mr. Campbell Had a Reasonable Expectation of Privacy in the Electronic Communications

(1) The Legal Framework

[ 33 ] The main purpose of s. 8 of the Charter, which guarantees that "everyone has the right to be secure against unreasonable search or seizure", is to protect the right to privacy from unjustified state intrusion (Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 159; R. v. Plant, [1993] 3 S.C.R. 281, at p. 292; Marakah, at para. 14). The right to be secure against unreasonable search or seizure requires that "[e]veryone" have "a reasonable expectation of privacy in the subject matter" of the search (Marakah, at para. 10).

[ 34 ] Courts analyze whether an individual has a reasonable expectation of privacy in a subject matter by considering four lines of inquiry (Marakah, at para. 11):

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?

[ 35 ] A reasonable expectation of privacy is not "a broad-based, philosophical expectation of privacy" but rather a "reasonable, contextual expectation of privacy" in the specific circumstances (Marakah, at para. 14, quoting R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 42). Whether an expectation of privacy is "reasonable" is a "normative" question that "must be assessed in the context of the competing social interests present in any given situation" (Marakah, at para. 14).

[ 36 ] The "totality of the circumstances" governs the analysis of whether one's expectation of privacy is objectively reasonable (Marakah, at para. 16, citing Tessling, at para. 19, and R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 15). There is no closed list of relevant factors.

(2) Mr. Campbell's Reasonable Expectation of Privacy

[ 37 ] Mr. Campbell's subjective expectation that his text messages with who he thought was Mr. Gammie would remain private is uncontested in this appeal. The only disputed question is whether that subjective expectation was objectively reasonable.

[ 38 ] In my view, it was. The text message conversation between Mr. Campbell and who he thought was Mr. Gammie reveals intimate details of Mr. Campbell's lifestyle and personal choices — his biographical core. The texts reveal that Mr. Campbell arranged what appears to be a drug transaction, which reflects his criminal associations, activities, and lifestyle.

[ 39 ] As this Court explained in Marakah, text message conversations are capable of revealing "intimate details of a lifestyle and personal choices" (para. 36). The biographical core of personal information includes information which tends to reveal intimate details of the lifestyle and personal choices of the individual (Plant, at p. 293). In Marakah, the Court accepted that the sender of text messages about arranging a drug transaction had a reasonable expectation of privacy in that conversation because the texts had the "potential, or tendency, to reveal details of [the accused's] lifestyle and personal choices [that he] would have expected would remain private" (para. 32).

[ 40 ] The same is true here. The later texts — those actually attributed to Mr. Campbell on his own evidence — included communications about his plan to deliver drugs. As the Court of Appeal found, these texts revealed "a lifestyle of criminal activity and other facts that he would have wanted to keep private, namely that he engaged in drug trafficking to support himself" (para. 47). These texts reveal information that goes to the biographical core of Mr. Campbell. His subjective expectation of privacy in these communications was objectively reasonable.

[ 41 ] Contrary to the Crown's submission, R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320, does not alter this analysis. The Crown argues that Mills "changed the law" by giving courts "a different standard for assessing the reasonableness of a claimant's expectation of privacy when they engage in undercover police activity" (R.F., at para. 37). In Mills, a majority of this Court held that an accused who had communicated with a police officer posing as a 14-year-old girl on an online platform did not have a reasonable expectation of privacy because the online platform existed for public consumption, and the accused knew or suspected that the person he was communicating with might be a police officer. Neither of those circumstances apply here. The relevant circumstances here — where Mr. Campbell communicated via text message with who he thought was Mr. Gammie — are different.

[ 42 ] The Crown also argues that "control" over information is determinative and that Mr. Campbell could not have a reasonable expectation of privacy in his texts because once sent, "the texts were in [Mr. Gammie's] possession and under [Mr. Gammie's] control" (R.F., at para. 13). I disagree. Text message senders can retain a reasonable expectation of privacy in their conversations even after sending them. As this Court made clear in Marakah, the fact that a text message recipient possesses the communication does not eliminate the sender's privacy interest.

[ 43 ] I therefore agree with the Court of Appeal that Mr. Campbell had a reasonable expectation of privacy in his text message conversation and had standing to challenge the search under s. 8 of the Charter.

B. The Warrantless Search Was Justified by Exigent Circumstances

(1) Was the Search of the Texts a Search Incident to the Arrest of Mr. Gammie?

[ 44 ] The Crown's initial position was that the police's engagement with Mr. Campbell was authorized by the common law power to search incident to arrest. I would reject this submission.

[ 45 ] The common law power of search incident to arrest authorizes police to search a lawfully arrested person and to seize anything in their possession or in the surrounding area. This power is justified because it allows police "to discover weapons that could be used to harm the arrested person, the police, or third parties; to prevent the destruction of evidence; and to facilitate the administration of justice" (R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 19, citing R. v. Collins, [1987] 1 S.C.R. 265, at p. 278). For this power to be validly exercised, the search must be "truly incidental to the arrest in the sense that it must be for a valid law enforcement purpose connected to the reasons for the arrest" (Fearon, at para. 22).

[ 46 ] The police's engagement with Mr. Campbell using Mr. Gammie's phone was not a search incident to Mr. Gammie's arrest. It was an undercover investigation of an entirely different person — Mr. Campbell — and was not connected to the reasons for Mr. Gammie's arrest. Indeed, when Mr. Gammie was arrested, the police did not know who Mr. Campbell was.

(2) Was the Search Authorized by the Exigent Circumstances Doctrine?

(a) The Legal Framework

[ 47 ] The relevant provision, s. 11(7) of the CDSA, states:

A peace officer may exercise any of the powers described in subsection (1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

[ 48 ] The leading case on s. 11(7) is R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202. Justice Brown, writing for the majority in Paterson, set out the legal standard for exigent circumstances under s. 11(7) as follows (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 seriously undermine the ability of the police to act in furtherance of one of these purposes.

[ 49 ] The trial judge conducted his exigent circumstances analysis by applying this framework.

[ 50 ] The exigent circumstances doctrine under s. 11(7) has two requirements. First, the police must establish that exigent circumstances existed — meaning urgency calling for immediate police action to preserve evidence, officer safety, or public safety. Second, the police must establish that these circumstances made it impracticable to obtain a warrant — meaning that taking the time to obtain a warrant would seriously undermine the ability of the police to act in furtherance of one of those purposes.

[ 51 ] A trial judge's findings of fact in this area attract substantial deference on appeal (R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 25). But whether the facts as found by the trial judge meet the legal standard for exigency under s. 11(7) is a question of law reviewable on a standard of correctness (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20; R. v. Dussault, 2022 SCC 16, [2022] 1 S.C.R. 306, at para. 26).

(b) Application

[ 116 ] As the Court of Appeal noted, "[t]he trial judge thoroughly reviewed the evidence" regarding the exigent circumstances and impracticability of obtaining a warrant, as required by s. 11(7) of the CDSA (para. 76). Applying this Court's decision in Paterson, the trial judge concluded:

. . . 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 . . . .

(voir dire reasons, at para. 100)

[ 117 ] Like the Court of Appeal, I see no error in the trial judge's analysis. The trial judge made specific findings relating to the need for immediate police action to protect public safety and the impracticability of obtaining a warrant, which cumulatively met the legal standard under s. 11(7).

(i) The Situation Involved a Suspected Drug Sale Calling for Immediate Police Action

[ 118 ] The trial judge accepted that the police officers reasonably believed that they faced an urgent situation involving a suspected drug sale calling for immediate police action. Had the police not intervened, Mr. Campbell would have aborted the sale to Mr. Gammie and sold the drugs elsewhere in the community.

[ 119 ] The trial judge's findings were supported by the officers' evidence at the voir dire. For example, Officer Orok testified that, based on the first four texts from Dew and his experience in investigating drug transactions, the situation was urgent. Officer Orok highlighted that Dew had texted his impatience:

Q. There's nothing of urgency in the text message.

A. Other than the person said they don't want to drive around with it, that would be an urgency.

Q. Okay, but that could mean that that person is going to drive around with it for a month, two weeks, right?

A. Well, [in] my experience a drug dealer does not want to drive around with heroin in his pockets, or vehicle for months, or hours for that matter.

Q. Okay. You'd agree with me that there was no urgency in terms of your investigation at this point in time.

A. I would say there would be urgency. Once Mr. Gammie was known to be arrested this person would not attend Guelph, would not contact Mr. Gammie anymore. [Emphasis added.]

(A.R., part V, vol. I, at pp. 241-42)

[ 120 ] Sergeant Bair agreed. He testified that Dew's texts suggested that he was impatient and did not want to drive around with the drugs, and that if Mr. Gammie took too long to respond, Dew would sell the drugs elsewhere in the community, since traffickers "don't just traffic to one person" (A.R., part V, vol. I, at p. 179).

[ 121 ] Based on this evidence, I see no basis to impugn the trial judge's finding that the situation required immediate police action because it involved an impatient drug dealer who expected to sell his drugs imminently, either to Mr. Gammie or to somebody else. The police had interrupted Dew's plans by arresting Mr. Gammie, and they had reason to believe that if they did not respond quickly to Dew's texts, Dew would soon realize that something had gone wrong and sell the drugs elsewhere in the community.

[ 122 ] Nor do I accept Mr. Campbell's argument that the Court of Appeal reviewed the trial judge's reasons under the wrong legal standard for exigency under s. 11(7). The Court of Appeal said that had the police not intercepted this transaction, "[t]he drugs would have been outside the reach of the police 'at another time', and would 'ultimately' be trafficked in the community" (para. 76). Mr. Campbell argues that these words do not capture the legal threshold under Paterson.

[ 123 ] I agree that, read in isolation, the words "at another time" and "ultimately" do not correctly express the legal threshold for exigency contemplated in Paterson. Nevertheless, the Court of Appeal proceeded to apply the correct legal standard, which asks whether the circumstances called for immediate police action. The Court of Appeal expressly recognized this standard (para. 78). Read as a whole, the Court of Appeal's reasons applied the correct standard.

[ 124 ] Here, the police needed to act immediately to intercept the sale of these drugs to prevent them from being trafficked in the community imminently. The Crown did not have to establish that the police had evidence that Dew had another specific sale lined up if the sale to Mr. Gammie fell through. The police are not required to establish certainty that the drugs will be sold elsewhere. Rather, based on the totality of the circumstances, the police must have reasonable grounds to believe that the drugs would be sold elsewhere imminently.

[ 125 ] Finally, I accept that the police cannot devise an investigative strategy to create circumstances of exigency in order to proceed without a warrant. In some cases, "[i]f the police strategy creates the supposed urgency, the circumstances are not 'exigent', but are anticipated, if not planned" (R. v. Kelsy, 2011 ONCA 605, 280 C.C.C. (3d) 456, at para. 35, per Rosenberg J.A., referring to R. v. Feeney, [1997] 2 S.C.R. 13, at para. 52). But that is not what happened here. There is no suggestion that the police manufactured the urgency in this case. The urgency arose from Dew's impatient texts about a drug transaction, not from the police's own actions.

(ii) The Police Suspected the Drugs Were Heroin Laced With Fentanyl, Which Posed a Grave Risk to Public Safety

[ 126 ] The trial judge found that "all of the evidence supports a finding that the officers thought that they were dealing with a transaction related to heroin, likely laced with fentanyl" (voir dire reasons, at para. 92). He stated that "[t]he three officers that saw [Dew's four] texts and spoke about them consistently thought that the transaction related to heroin and possibly fentanyl" (voir dire reasons, at para. 90).

[ 127 ] The trial judge's finding that Dew's first four texts, referring to "1250 for this half", likely involved heroin laced with fentanyl was supported by the evidence. Sergeant Bair reasonably inferred that the phrase "1250 for this half" was consistent with a cheap price for heroin. He testified that heroin is sold in half ounces (approximately 14 grams) and that a half ounce could cost $700-$750, lower than what was offered in the texts. A lower price per gram was consistent with heroin laced with fentanyl, as it was generally considered cheaper than pure heroin. Based on his training and experience, Sergeant Bair formed the belief that the transaction likely involved heroin laced with fentanyl.

[ 128 ] Similarly, Officer Hunt testified that two reliable confidential informers had advised him that Mr. Gammie was trafficking in cocaine, heroin, and crystal methamphetamine, and that one confidential informer had included fentanyl on the list. Officer Orok testified that, based on the confidential informer information and the drug texts in the situation, he concluded the drugs were likely heroin laced with fentanyl.

[ 129 ] I see no merit in Mr. Campbell's argument that the trial judge made "questionable" inferences by finding that the police had reasonable and probable grounds to believe the transaction involved heroin laced with fentanyl (A.F., at para. 47). Mr. Campbell says that the police "did not know who the texts were from, or what drugs they might involve" (A.F., at para. 47). However, the trial judge found the contrary — that the police had reasonable and probable grounds for their belief — and this finding of fact is entitled to deference.

[ 130 ] I therefore see no basis to impugn the trial judge's finding that "[o]n this evidence, . . . the officers believed that the drug transaction was for heroin laced with fentanyl" (voir dire reasons, at para. 96).

[ 131 ] Equally unassailable is the trial judge's finding that the officers reasonably believed that this drug transaction raised a need to protect public safety because of "[t]he likelihood that the transaction involved fentanyl and its dramatic effects on the community" (voir dire reasons, at para. 97).

[ 132 ] The severe dangers posed by fentanyl trafficking were highlighted by Moldaver J. in R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at paras. 94-97, but bear repeating. Fentanyl is a highly addictive and extremely powerful opioid pain reliever and sedative intended to be administered in a controlled medical context. It is roughly 50 to 100 times more potent than morphine and 30 to 50 times more potent than heroin. As little as two milligrams of fentanyl can result in death. The misuse of this drug has proven catastrophic: fentanyl overdoses have taken thousands of lives across Canada and have prompted governments at all levels to declare states of public health emergency.

[ 133 ] Although Mr. Campbell does not dispute the dangers of fentanyl, he advances two objections to the conclusion that exigent circumstances existed.

[ 134 ] First, Mr. Campbell says that the Court of Appeal reviewed the trial judge's conclusion on exigency under a standard of reasonableness rather than correctness. He impugns the Court of Appeal's statement that "[a]lthough the trial judge's conclusion relied on some contingencies, it was not unreasonable" (para. 78). For the reasons I have already explained, I do not accept this submission.

[ 135 ] I would not give effect to this submission. The Court of Appeal's focus in the impugned paragraph was whether the evidence before the trial judge provided a basis for him to find, as a fact, that the police acted to protect public safety. The court concluded that the trial judge's finding was based on evidence, with which the Court of Appeal agreed. On this reading, the Court of Appeal applied the correct standard of correctness for questions of law, while deferring to the trial judge's findings of fact.

[ 136 ] Second, Mr. Campbell asserts that the reasoning of the trial judge effectively creates a "fentanyl exception" to the standard for exigency that would be met in every case of suspected trafficking of serious drugs. He claims that a finding of exigent circumstances must be extraordinary, and that the trial judge's findings here did not meet that bar.

[ 137 ] I accept that, "[b]y their nature, exigent circumstances are extraordinary and should be invoked to justify violation of a person's privacy only [when] necessary" (R. v. Kelsy, 2011 ONCA 605, 280 C.C.C. (3d) 456, at para. 35, per Rosenberg J.A., referring to R. v. Feeney, [1997] 2 S.C.R. 13, at para. 52). The exigent circumstances doctrine should not be allowed to become a loophole that swallows the rule requiring police to obtain warrants before conducting searches.

[ 138 ] Different facts might have yielded a different conclusion. For example, had Dew texted to set up a drug transaction the next day or week, the same urgency might not have been present. Depending on the circumstances, the police may have been able, and required, to obtain a warrant. But that is not this case.

[ 139 ] In my view, therefore, the trial judge correctly found that the legal standard for exigent circumstances was met because the police faced an urgent situation calling for immediate police action to protect public safety.

(iii) The Circumstances for Obtaining a Warrant Existed but It Was Impracticable To Obtain One

[ 140 ] Mr. Campbell does not seriously dispute that the police had grounds to obtain a warrant. Based on the first four texts from Dew that the police saw on Mr. Gammie's phone, the police had reasonable and probable grounds to believe that Dew intended to traffic heroin laced with fentanyl to Mr. Gammie. The only issue is whether it was "impracticable" to obtain a warrant, as required by s. 11(7) of the CDSA. On the trial judge's unchallenged factual findings, the police faced an urgent situation calling for immediate police action. In these circumstances, I conclude that it was impracticable to obtain a warrant under s. 11(7) of the CDSA. Requiring the police to obtain a warrant in these circumstances would have seriously undermined their ability to protect public safety.

(c) Conclusion

[ 141 ] I conclude that the trial judge did not err in holding that the police had authority for a warrantless search under s. 11(7) of the CDSA. As a result, the police did not infringe s. 8 of the Charter.

(4) This Court Should Decline To Entertain Mr. Campbell's New Argument That Section 11(7) of the CDSA Does Not Apply to the Search of a Text Message Conversation

[ 142 ] At the oral argument of this appeal, counsel for Mr. Campbell briefly raised a new argument that had not been raised in the courts below or in the written arguments before this Court. He argued that s. 11(7) of the CDSA only authorizes the search of a "place", which he said did not extend to a text message conversation.

[ 143 ] In my view, this Court should decline to entertain this new argument raised for the first time during oral argument before this Court. As this Court has repeatedly affirmed, appellate courts are generally reluctant to entertain new arguments when "they are deprived of the trial court's perspective" and "the opposing party has not had an opportunity to address them" (R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 30).

[ 144 ] Here, Mr. Campbell's new argument was not raised in the courts below or in his written submissions before this Court. The question of exigency was argued at all levels of court based solely on s. 11(7) of the CDSA. Recasting the case at this late stage would be inappropriate given the broader legal implications of the argument and the fact that neither the Crown nor the interveners had a meaningful opportunity to respond.

C. It Is Not Necessary To Address Section 24(2) of the Charter

[ 145 ] Because I conclude that the police did not infringe s. 8 of the Charter, it is not necessary to address whether the evidence should have been excluded under s. 24(2) of the Charter.

VI. Disposition

[ 146 ] I would dismiss the appeal.

Concurring Reasons

The following are the reasons delivered by

Rowe J. —

[ 147 ] I agree fully with my colleague, Justice Jamal, in his reasons and in the result. I write separately only in response to the treatment of exigent circumstances and the analysis under s. 24(2) of the Canadian Charter of Rights and Freedoms by my colleagues, Justice Martin and Justice Moreau, in their joint dissenting reasons.

I. Paterson Is the Governing Case on "Exigent Circumstances"

[ 148 ] As Justice Jamal sets out, s. 11(7) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA"), authorizes peace officers to conduct a warrantless search if the conditions for a warrant exist, but "exigent circumstances" render it "impracticable" to obtain one (para. 111).

[ 149 ] R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, is the governing precedent on exigent circumstances under s. 11(7). My colleagues, in their dissenting reasons, trace the development of the doctrine of exigent circumstances in the pre- and post-Charter era. They characterize Paterson as merely "a synthesis of the jurisprudence as it then stood" (para. 305). With respect, this does not give proper effect to Paterson.

[ 150 ] Respectfully, this does not give proper effect to Paterson. Rather, it has the effect of Paterson being replaced by my colleagues' preferred formulation of the law. This is problematic methodologically. Let us assume that I prefer jurisprudence that preceded the References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175. In that decision, the Court set out the "national concern" doctrine, which is part of the federal peace, order, and good government power. This represents the law as it stands. Even if I thought earlier jurisprudence was "better" in some way, going behind References re Greenhouse Gas and relying on earlier cases in order to advance my preferred view of the law, would undermine stare decisis.

[ 151 ] While Justice Brown in Paterson referred to cases on exigency in his interpretation of s. 11(7) of the CDSA, as one would expect, he went on to set out a framework for exigent circumstances that continues to govern (paras. 32-33 and 37).

[ 152 ] The two paragraphs in Paterson which my colleagues have identified — paras. 32-33 — need to be read in the context of the decision as a whole. When this is done, it is clear that the Court in Paterson had two objectives: (1) to respond to an argument raised by the appellant about the relationship between exigent circumstances in s. 11(7) of the CDSA and the definitional categories of exigency in s. 529.3(2) of the Criminal Code; and (2) to set out a framework for exigent circumstances that continues to govern.

[ 153 ] As to the first objective, the appellant in Paterson urged the Court to import the definition of "exigent circumstances" at s. 529.3(2) of the Criminal Code into s. 11(7) of the CDSA (para. 30). This submission was rejected (para. 31).

[ 154 ] At paragraph 32, Justice Brown acknowledged that the circumstances in which exigent circumstances have been recognized bore "close resemblance" to the definitional categories in s. 529.3(2). It was in this context that he proceeded to review the existing case law:

All that said, circumstances in which "exigent circumstances" have been recognized have borne close resemblance to the definitional categories in s. 529.3(2). This Court's jurisprudence considering s. 10 of the Narcotic Control Act, R.S.C. 1985, c. N-1 (which was repealed and replaced by the CDSA in 1996) . . . .

[ 155 ] Turning to the second objective, Justice Brown's review of the jurisprudence led him to set out a "common theme" of "urgency" (para. 33):

The common theme emerging from these descriptions of "exigent circumstances" in s. 11(7) denotes not merely convenience, propitiousness or economy, but rather urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety or public safety. This threshold is not without teeth: it requires something more than mere convenience, something less than absolute necessity.

[ 156 ] Justice Brown then set out a concise statement of the law on exigent circumstances under s. 11(7) of the CDSA (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 seriously undermine the ability of the police to act in furtherance of one of these purposes.

[ 157 ] Paterson is not merely a summary of the cases that came before. Rather, it sets out a definitive statement of the doctrine of exigent circumstances, which statement continues to govern.

[ 158 ] My colleagues seek to go behind Paterson and rely on earlier cases in order to advance their own view of "a narrow and strict application of the safety branch, or indeed any category of exigent circumstances" (para. 318). While I agree that earlier case law can provide a degree of insight into the development of the doctrine, such cases cannot be used to override Paterson. The decision in Paterson governs.

II. There Was "Imminent" Risk of Harm to Public Safety

[ 159 ] Under Paterson, one way "urgency" can arise is when "immediate police action" is needed to preserve public safety (paras. 33 and 37).

[ 160 ] My colleagues, in their dissenting reasons, suggest that a "safety risk" to the public must be "imminent" (para. 319), but found that it was not so here as two events were needed for the risk to public safety to materialize: first, Mr. Campbell would need to sell the drugs to a street dealer, and second, the street dealer would need to sell the drugs to a user (para. 327). I agree that there must be some degree of imminence for a risk to amount to an exigent circumstance. But I disagree with my colleagues' characterization of the facts.

[ 161 ] Respectfully, this comports with neither the jurisprudence nor the trial judge's findings. 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 by Dew of a significant quantity of drugs containing fentanyl. The police could not know how long Dew would be willing to wait before concluding Mr. Gammie had been arrested, or how quickly he would sell the drugs elsewhere.

[ 162 ] This was a dynamic and time-sensitive situation. First, Dew's texts displayed impatience about the sale (voir dire reasons, at para. 100), and the police believed if they took too long to reply, they would lose contact as Dew would assume Mr. Gammie was arrested (A.R., part V, vol. I, at pp. 179, 181 and 242). Second, the drugs Dew was carrying posed a grave risk to public safety. The police had reasonable grounds to believe the drugs were heroin laced with fentanyl, a lethal combination. Even a small amount could cause overdose and death. The risk was not contingent on the drugs passing through multiple people — Mr. Campbell or Dew could sell to a user directly.

[ 163 ] My colleagues implicitly elevate the evidentiary requirements for exigent circumstances. They state there was nothing in the record to suggest that there was "another prospective buyer immediately waiting in the wings, making the potential sale imminent" (para. 327). Respectfully, the Crown is not required to prove a specific alternate buyer was lined up. Rather, the Crown must demonstrate that, based on the totality of the circumstances, police had reasonable grounds to believe that the drugs posed an imminent risk to public safety. That threshold was met here.

[ 164 ] The facts in this case come within "exigent circumstances" under s. 11(7) as described in Paterson. There is no basis to disturb the trial judge's conclusion that, "[w]ithout immediate action, the transaction and the drugs were at risk" (voir dire reasons, at para. 100). The police had a legitimate and urgent reason to act immediately to prevent this drug sale from occurring.

[ 165 ] One can readily contemplate comparable circumstances of a "now‑or‑never" situation in which police have a very limited opportunity to prevent a threat to public safety, e.g. to thwart the transfer of arms or explosives intended for use in a politically-motivated attack in a public place on a specific date — say, Canada Day. In these circumstances, it would be recognized that the police faced exigent circumstances calling for immediate police action to protect public safety. The situation in the instant case is no different in principle, as it was one in which the police faced a narrow window in which to prevent a dangerous drug transaction.

III. Section 24(2) Analysis

[ 166 ] On the issue of s. 24(2) of the Charter, I agree with Justice Côté in her concurring reasons. I would add only the following.

[ 167 ] In relation to the first factor in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, my colleagues, in their dissenting reasons, are of the view that none of the police officers attempted "to obtain judicial authorization in the approximately two-hour timeframe during which they communicated with Mr. Campbell" (para. 342). This, in their view, was "particularly puzzling" and aggravates the seriousness of the breach (para. 342). The evidence demonstrates that the police actively turned their mind to the question of judicial authorization before concluding that they had no time to obtain a warrant. While the communications between the police and the accused ultimately extended over two hours, the police had no way to know this. In a volatile and uncertain situation, minutes could matter. The police acted reasonably. Their conduct, on the facts of this case, does not demonstrate a "wilful or reckless disregard of Charter rights" (Paterson, at para. 43).

Concurring Reasons

The following are the reasons delivered by

Côté J. —

I. Introduction

[ 168 ] I agree with my colleague Jamal J. that the appeal should be dismissed. However, I would arrive at my conclusion for reasons more closely aligned with those of the trial judge. In my opinion, the police conduct did not amount to a search for the purposes of s. 8 of the Canadian Charter of Rights and Freedoms. The accused's subjective expectation of privacy was not objectively reasonable in the totality of the circumstances. Thus, the police did not conduct a "search" within the meaning of s. 8 of the Charter and the accused's rights were not engaged.

[ 169 ] While I would find that the appellant, Mr. Campbell, had a subjective expectation of privacy in the subject matter at issue, his expectation of privacy was not objectively reasonable in the totality of the circumstances of this case. It is quite clear that our Court's decision in R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, did not create a broad principle of automatic privacy protection for all electronic communications in any circumstances.

[ 170 ] Assessed in the totality of the circumstances of this case, any subjective expectation of privacy that the appellant may have possessed was significantly diminished and did not attract s. 8 protection. The police were at liberty to view and respond to the four text messages they passively received and observed on Mr. Gammie's lawfully seized phone. Their conduct was specifically tailored to the investigation before them. They did not ask probing questions or delve into the contents of the phone or its owner. The police limited the scope of their conduct to what was necessary to prevent a potential drug transaction involving what they reasonably believed was heroin laced with fentanyl.

[ 171 ] Beyond the undercover nature of the investigation, there are multiple factors that support the Crown's submission that the appellant's subjective expectation of privacy was not objectively reasonable. These factors include, but are not limited to, the circumscribed nature and lack of intrusiveness of the police conduct; the ownership of and control over the device and the electronic communications therein; and the distinction between the circumstances of this case and those in Marakah.

[ 172 ] This is the basis on which I reach the same outcome as my colleague Justice Jamal and dismiss the appeal.

II. Analysis

A. Searches for the Purposes of Section 8

[ 173 ] It is well established that the determination of whether the police have conducted a search for the purposes of s. 8 of the Charter directly hinges on the presence of a reasonable expectation of privacy within the specific circumstances of the case. It is essential for courts, when conducting this analysis, to balance sometimes conflicting interests in the privacy necessary for personal dignity and autonomy and the need for a secure and safe society.

[ 174 ] Not every government examination or investigatory technique will constitute a search under the Charter (Mills, at para. 41, per Karakatsanis J.; see also R. v. Evans, [1996] 1 S.C.R. 8, at para. 11; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18).

[ 175 ] For claimants to benefit from this s. 8 protection against unreasonable state conduct, they must establish a reasonable expectation of privacy in the subject matter of the "putative" search (see Mills, at para. 12, citing Marakah, at para. 10). More specifically, they must have a subjective expectation of privacy that is objectively reasonable. The key four-step analytical framework set out in Marakah for assessing a reasonable expectation of privacy is:

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?

(Marakah, at para. 11)

[ 176 ] Whether one's subjective expectation of privacy is objectively reasonable will "vary with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusion occurs, and the purposes of the intrusion" (R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 15; Marakah, at para. 16).

B. Electronic Communications and Section 8

[ 177 ] The appellant suggests that the factual circumstances at issue in the present case are identical to those that our Court observed in Marakah. He submits that the facts of the two cases display "no legally significant differences" (A.F., at para. 28). I respectfully disagree and believe it is necessary to carefully examine how the present case differs from Marakah.

[ 178 ] I do not question the idea that Marakah represented a groundbreaking development in our s. 8 jurisprudence and supported the fact that electronic communications may contain private content (see Marakah, at para. 36, per McLachlin C.J., and at para. 92, per Moldaver J.; R. v. J.J., 2022 SCC 28, at para. 115, per Karakatsanis J.). Naturally, I am bound by Marakah, which is not in question here.

[ 179 ] But that is not always the case. It must be remembered that Marakah did not set out a categorical proposition that all senders of text messages retain a reasonable expectation of privacy over their electronic communications, nor did it suggest that all text message conversations would attract such a reasonable expectation. The Crown in this case asserts that Marakah "did not create a rule of automatic standing for all communications in written electronic form" (R.F., at para. 3). I cannot agree more. Indeed, the Court of Appeal for Ontario recently proceeded on the same understanding in R. v. Knelsen, 2024 ONCA 501, at para. 38, where van Rensburg J.A. wrote that "[t]here is no automatic standing to assert a s. 8 right in respect of text messages that have been sent and received" (emphasis deleted). It is imperative to provide this clarification given the evolving jurisprudence referenced by the Crown, which seemingly equates a private communication with inherent standing under s. 8 in any context (R.F., at para. 34; see also R. v. Rafferty, 2018 ONCJ 881, 424 C.R.R. (2d) 88, at para. 23).

C. The Three Factors Supporting a Diminished Expectation of Privacy

[ 180 ] Beyond the undercover nature of the investigation, three factors support the conclusion that the accused's subjective expectation of privacy was not objectively reasonable.

(1) The Circumscribed Nature and Lack of Intrusiveness of the Police Conduct

[ 181 ] The police cannot peruse the contents of a phone at liberty and without any limits; however, their actions may be appropriate if they limit and circumscribe the scope of their conduct to the investigation before them. In the instant case, the police were at liberty to view and respond to the four text messages from D that they passively received and observed on G's lawfully seized phone. The police appropriately limited the scope of their engagement with the accused to what was necessary for the investigation at hand. They did not ask probing questions, did not access data stored on the phone, and did not peruse Mr. Gammie's other conversations. The police's conduct was limited and circumscribed in a way that respected Mr. Campbell's diminished privacy interests in the subject matter.

(2) Ownership of and Control Over the Device

[ 182 ] The second factor is the ownership of and control over the device and the electronic communications therein, which are relevant but not determinative concepts in the context of s. 8 protection. The accused's lack of total control over the conversation and ownership of the phone support a significantly diminished expectation of privacy, which is not objectively reasonable in the circumstances of this case.

(3) Distinction from Marakah

[ 183 ] The third factor is the distinction between the circumstances of the present case and those existing in Marakah. The more people that are involved in a conversation and the less control one has over who might see it, the more likely it is that one's subjective expectation of privacy will not be objectively reasonable. In Marakah, that accused's reasonable expectation of privacy was diminished due to the "multi-party nature" of the communications. Here, the involvement of the police as an undisclosed third party further diminishes the objectivity of the appellant's subjective expectation of privacy.

[ 184 ] The electronic communications therefore did not reveal any information that implicated the biographical core of the accused, nor were they likely, based on the normative nature of the s. 8 inquiry, to reveal any, given the circumscribed nature of the police investigation.

[ 185 ] There is disagreement with aspects of the dissent's analysis. In particular, the consequences of the implied conclusion that the investigation in this case amounted to an interception are significant. This would require a Part VI Criminal Code authorization rather than a general warrant, thus imposing greater requirements for obtaining authorization, and creating significant hurdles for law enforcement investigations.

Joint Dissenting Reasons

The following are the reasons delivered by

Martin and Moreau JJ. (Karakatsanis J. concurring) —

[ 238 ] We would allow the appeal, set aside the appellant's convictions, and enter acquittals.

[ 239 ] The warrantless police actions engaged and breached the appellant Dwayne Campbell's s. 8 Charter right to be free from unreasonable search and seizure. The police actions cannot be justified by the power to search incident to arrest or exigent circumstances. The admission of the evidence would bring the administration of justice into disrepute.

[ 240 ] The police lured Mr. Campbell to Mr. Gammie's residence by impersonating Mr. Gammie over two-plus hours of text message communications. When Mr. Campbell arrived, he was immediately arrested and found to be in possession of heroin mixed with fentanyl. His convictions for drug trafficking and possession for the purpose of trafficking are based entirely on evidence obtained through those warrantless police actions.

[ 241 ] The appellant has an objectively reasonable expectation of privacy in these electronic communications. The police's actions were not authorized by the power to search incident to arrest. Nor were they authorized by s. 11(7) of the CDSA, as there were no exigent circumstances to justify the warrantless search. Because these police actions constituted an unreasonable search within the meaning of s. 8 of the Charter, and given the three-factor Grant analysis on s. 24(2), the evidence should be excluded.

I. The Appellant Had a Reasonable Expectation of Privacy in the Electronic Communications

[ 242 ] We agree with Justice Jamal's analysis and conclusion that Mr. Campbell had a reasonable expectation of privacy in his text message conversation. The totality of the circumstances remains the correct approach to assessing whether a claimant has a reasonable expectation of privacy, including in cases where there is an undercover aspect to the police conduct (Mills, at para. 25, per Karakatsanis J.).

[ 243 ] Even if there are features of the investigative technique that one could characterize as undercover, these features must be weighed against all the other circumstances of the case in applying the totality of the circumstances test. This is the approach taken by the Court in Mills. The case before us involves a different balance than in Mills, where the Court found no reasonable expectation of privacy.

II. The Warrantless Search Cannot Be Justified

A. Not a Search Incident to Arrest

[ 244 ] We agree with Justice Jamal that the warrantless investigative technique was not a search incident to arrest because the police did not conduct it for a valid law enforcement purpose connected to the reasons for the arrest. The power to search incident to arrest does not authorize police to use a lawfully seized cell phone to communicate with another person. G's arrest was not tied to the impending drug transaction with the accused. The police used G's phone not to discover evidence related to G's arrest but to actively induce the commission of a new offence.

B. No Exigent Circumstances

[ 245 ] We part ways with Jamal J. on whether the warrantless search was justified by the doctrine of exigent circumstances. We would conclude that no exigent circumstances existed.

[ 246 ] Parliament enacted s. 11(7) of the CDSA as a narrow exception to the general rule requiring police to obtain a warrant before conducting a search. For this exception to apply, the Crown must establish: (1) grounds for obtaining a warrant; (2) exigent circumstances requiring immediate action; and (3) impracticability of obtaining a warrant.

[ 247 ] The doctrine of exigent circumstances must be understood in light of its limited purpose and cautious jurisprudential evolution. This doctrine cannot be understood separate from the longstanding normative approach of the law of search and seizure that, whenever feasible, intrusions upon property, privacy and dignity should be pre-authorized by an independent arbiter.

[ 248 ] Since Parliament codified certain warrantless powers to search in exigent circumstances, and despite the absence of a statutory definition for such circumstances in s. 11(7) of the CDSA and s. 487.11 of the Criminal Code, the requirements for establishing exigent circumstances may be distilled into three elements: the existence of grounds for obtaining a warrant; the existence of exigent circumstances requiring immediate action; and the impracticability of obtaining a warrant in the circumstances. The test of exigency in terms of public safety is whether there is an imminent risk, not merely a possible or theoretical one.

[ 249 ] We would not rely on Paterson alone as a final statement of the law on exigent circumstances. Paterson is best understood as a synthesis of the jurisprudence as it then stood, not as a doctrinal departure from it. The cases that preceded Paterson provide important context for understanding what the exigent circumstances doctrine requires.

[ 250 ] The facts of this case do not establish an imminent safety risk justifying warrantless police action. The police had time — approximately two hours — in which they actively communicated with the accused. During this period, officers could have sought judicial authorization. The mere possibility that a drug transaction would occur, without evidence of a specifically imminent risk, is insufficient to establish exigent circumstances.

[ 251 ] Moreover, the safety rationale for the exigent circumstances doctrine applies when there is a present, imminent threat of harm to identifiable persons. Here, the drugs were not yet in circulation. There was no specific buyer for the drugs — Dew's drugs were being sold to Mr. Gammie (who was in custody) through an intermediary. The police had no evidence of a specific sale to a member of the public that was about to occur. The speculative possibility that drugs would eventually reach the community is present in any drug case and cannot be sufficient to establish an imminent risk to public safety.

[ 252 ] We would therefore find that there were no exigent circumstances and that the search was not authorized under s. 11(7) of the CDSA.

III. The Evidence Should Be Excluded Under Section 24(2) of the Charter

[ 253 ] Because the warrantless search was not authorized by any applicable law, it constituted a breach of s. 8 of the Charter. We must now determine whether the evidence should be excluded under s. 24(2) of the Charter.

[ 254 ] Section 24(2) of the Charter mandates that evidence shall be excluded if, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. Whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused's Charter-protected interests; and (3) society's interest in the adjudication of the case on its merits (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 ("Grant 2009"), at para. 71).

[ 255 ] When Mr. Campbell arrived at the side door of Mr. Gammie's apartment building, he removed a red running shoe that had been placed to leave the door ajar, as discussed in his messages with Officer Orok. He arrived at the door of Mr. Gammie's residence holding the shoe, where officers were waiting in uniform and informed him he was under arrest. Mr. Campbell attempted to run away, but was apprehended, arrested, and searched. Police seized a cellphone, 14.33 grams of heroin mixed with fentanyl, and $40 cash. The phone seized from Mr. Campbell was still displaying messages on screen from the conversation with Officer Orok. The police then scrolled through Mr. Campbell's phone and took photographs of the text messages, triggering a subsequent breach under s. 8 of the Charter.

[ 256 ] What happened and the precise nature of the police conduct at issue bears on the central legal questions in this case, specifically, whether this state action engaged and breached Mr. Campbell's right to be free from unreasonable search and seizure under s. 8 of the Charter; whether the police can justify their actions based on what they argue were "exigent circumstances"; and whether the admission of the evidence so obtained would bring the administration of justice into disrepute according to the factors our Court must consider under s. 24(2) of the Charter.

III. Analysis

A. Mr. Campbell Had a Reasonable Expectation of Privacy in the Electronic Communications

[ 257 ] We proceed from the conclusion, shared by Jamal J. and Côté J. (in the alternative), that Mr. Campbell had a reasonable expectation of privacy in his electronic communications with Mr. Gammie's phone. We therefore turn to whether the police's warrantless search was justified.

B. The Warrantless Search Was Not Justified

[ 258 ] Parliament has set out various ways in which prior judicial authorization may be sought for state action which threatens a person's reasonable expectation of privacy. Here the police did not seek or obtain any such authorization and their warrantless search was therefore a prima facie breach of s. 8, unless they could establish the existence of special circumstances recognized in law as justifying the warrantless search.

[ 259 ] The Crown argued that the warrantless search was justified either (a) as a search incident to arrest or (b) by the doctrine of exigent circumstances under s. 11(7) of the CDSA. We address each in turn.

(1) Search Incident to Arrest

[ 260 ] We agree with Justice Jamal (para. 46) that the warrantless investigative technique was not a search incident to arrest because the police did not conduct it for a valid law enforcement purpose connected to the reasons for the arrest. The power to search incident to arrest does not authorize police to use a lawfully seized cell phone to communicate with another person.

[ 261 ] G's arrest was not tied to the impending drug transaction with the accused. The police used G's phone not to discover evidence related to G's arrest but to actively induce the commission of a new offence by a third party. The search incident to arrest power cannot be stretched to authorize the type of proactive, ongoing investigative technique used here.

(2) Exigent Circumstances Under Section 11(7) of the CDSA

[ 262 ] The critical question is whether the doctrine of exigent circumstances justified the warrantless search in this case. We conclude it did not.

(a) The Legal Framework

[ 263 ] Section 11(7) of the CDSA authorizes warrantless searches in cases of exigent circumstances. As Justice Jamal notes, the governing precedent on exigent circumstances is Paterson, which requires the Crown to show: (1) urgency calling for immediate police action to preserve evidence, officer safety or public safety; and (2) that this urgency made it impracticable to obtain a warrant.

[ 264 ] We do not question Paterson's general framework. However, we read Paterson as embodying a rigorous standard for exigency, particularly for the safety branch of the doctrine. The concept of "immediate police action" required to protect public safety must be understood in light of the longstanding principle that intrusions on privacy should be pre-authorized whenever feasible.

[ 265 ] The test of exigency in terms of public safety requires an imminent risk of harm, not merely a possible or speculative one. As this Court has recognized, "[b]y their nature, exigent circumstances are extraordinary and should be invoked to justify violation of a person's privacy only [when] necessary" (Kelsy, at para. 35).

(b) The Facts Did Not Establish Exigent Circumstances

[ 266 ] We respectfully disagree with Jamal J. and Rowe J.'s conclusion that the facts of this case establish exigent circumstances.

[ 267 ] The police had approximately two hours during which they communicated with the accused. During this time, officers were present at the scene, communicated with each other, and planned the arrest. One of the officers at the scene was the same officer who had drafted the search warrant for Mr. Gammie's residence. Notably, none of the experienced officers testified at the voir dire as to which warrant would have been required to authorize their investigative technique, nor did any of these officers attempt to obtain judicial authorization in the approximately two-hour timeframe during which they communicated with Mr. Campbell.

[ 268 ] The risk to public safety alleged here was not imminent in any meaningful sense. For the risk to materialize, Mr. Campbell would have needed to sell the drugs to someone, and that person would then need to consume them. The drugs were not in general circulation; they were being carried by a single person to a specific location. There was no evidence of a specific buyer ready to receive the drugs and immediately consume them. The speculative possibility that the drugs would eventually reach the community is insufficient to establish an imminent risk.

[ 269 ] We would therefore find that there were no exigent circumstances and that the warrantless search was not justified under s. 11(7) of the CDSA.

C. Section 24(2) Analysis

[ 270 ] Because the warrantless search was not authorized, it constituted a breach of s. 8 of the Charter. We now conduct the s. 24(2) analysis.

[ 271 ] In this case, the trial judge conducted an analysis in the alternative under s. 24(2) and concluded that the evidence should be admitted (voir dire reasons, at paras. 129-39). In light of its conclusion on exigent circumstances, the Ontario Court of Appeal declined to address the s. 24(2) issue (para. 85). Although a trial judge's s. 24(2) analysis normally attracts deference as to the supporting findings of fact made, given our disagreement with the trial judge's conclusion, in this case the s. 24(2) analysis can be conducted anew (Grant 2009, at para. 129; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 138; Tim, at para. 72).

(1) The Seriousness of the Charter-Infringing State Conduct

[ 336 ] Section 24(2) of the Charter mandates that evidence shall be excluded if, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. Whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused's Charter-protected interests; and (3) society's interest in the adjudication of the case on its merits (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 ("Grant 2009"), at para. 71).

[ 337 ] In this case, the trial judge conducted an analysis in the alternative under s. 24(2) and concluded that the evidence should be admitted (voir dire reasons, at paras. 129-39). In light of its conclusion on exigent circumstances, the Ontario Court of Appeal declined to address the s. 24(2) issue (para. 85). Although a trial judge's s. 24(2) analysis normally attracts deference as to the supporting findings of fact made, given our disagreement with the trial judge's conclusion, in this case the s. 24(2) analysis can be conducted anew (Grant 2009, at para. 129; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 138; Tim, at para. 72).

[ 338 ] Our task at this stage is to situate the police's conduct on a "scale of culpability", ranging from inadvertent, technical, or otherwise minor infringements on one end, to conduct that demonstrates a wilful or reckless disregard of Charter rights on the other (Paterson, at para. 43; Le, at para. 143). We characterize the police conduct as falling on the more serious end and therefore find the first Grant 2009 factor favours the exclusion of the evidence.

[ 339 ] A number of factors weigh heavily against admission of the evidence: the police's conduct in the absence of exigent circumstances; the legal uncertainty surrounding the nature of the investigative technique; and the multiple Charter breaches.

[ 340 ] The law has been clear for some time that warrantless searches are presumptively unreasonable (see, e.g., Hunter; Collins; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 33). As discussed earlier in these reasons, the factual findings in this case do not support an imminent risk to the safety of the public or the police — the legal standard required for the doctrine of exigent circumstances to justify a warrantless search. Rather, the police's references to the urgency of the situation were primarily tied to the investigative convenience of intercepting the drugs, based on the seriousness of the offence, the fact that drug dealers like Dew typically did not want to drive around with product, and the fact that he appeared impatient (A.R., part V, vol. II, at pp. 179, 181 and 242). In the face of no real evidence to support a finding of imminent risk to safety, it is troubling that police did not even attempt to obtain a telewarrant, whether at the beginning or as time passed and events unfolded. In sum, the police relied on exigency for the warrantless search without a valid basis, rendering the Charter-infringing conduct more serious (Paterson, at para. 47).

[ 341 ] The police officers' experience and familiarity with the law further aggravates the seriousness of the Charter breach as Mr. Campbell's warrantless search did not take the police into "uncharted legal waters" (Le, at para. 149). This Court has been clear that the exclusion of evidence is warranted "for clear violations of well-established rules governing state conduct" (Tim, at para. 85, quoting Paterson, at para. 44). In our respectful view, the breaches were, taken in their best light, negligent as to Charter standards. Sgt. Bair testified that he had been with the Guelph Police Service for over 20 years, that he had investigated drugs for "more than half" of his career and that he had been a "sergeant in charge" of a drug unit since 2013 (A.R., part V, vol. I, at pp. 3-4). Officer Orok was a qualified level V undercover officer, which was the "highest" qualification possible, and had been specifically part of the drug unit for approximately four and a half years (pp. 193-94). Similarly, Officer Brown had been with the drug unit for over five years (p. 114). As in every case, police are "rightly expected to know what the law is", particularly when, as here, the law on warrantless searches is well settled and the officers involved had decades of experience (Grant 2009, at para. 133).

[ 342 ] We would also note that none of these experienced officers testified at the voir dire as to which warrant would have been required to authorize their investigative technique (A.R., part V, vol. I, at pp. 59, 96, 183 and 185). Nor did any of these officers attempt to obtain judicial authorization in the approximately two-hour timeframe during which they communicated with Mr. Campbell, arranged the drug sale and waited for him to arrive. In these circumstances, the lack of any demonstrated effort to even attempt to obtain any judicial authorization was particularly puzzling considering that one of the officers at the scene was the same officer who had drafted the search warrant for Mr. Gammie's residence (p. 118).

[ 343 ] As of the date of Mr. Campbell's arrest, the law in Ontario, per the Court of Appeal of Ontario's decision in R. v. Marakah, 2016 ONCA 542, 131 O.R. (3d) 561, was that there was no reasonable expectation of privacy in a co-accused's cell phone. This point was reversed by this Court in Marakah (A.R., part V, vol. I, at pp. 95-97 and 180-83).

[ 344 ] However, even though the police may have operated under the existing law with respect to Mr. Campbell's privacy interest when they viewed Mr. Gammie's phone, their legal authority to impersonate Mr. Gammie (by virtue of his arrest and without his knowledge) and usurp control of a private, ongoing, conversation remained wholly unclear at the time of the investigation. When faced with such uncertainty, "the police would do well to err on the side of caution" (TELUS, at para. 80; R. v. McColman, 2023 SCC 8, at paras. 60 and 63). The police testified that they had concerns regarding whether there was proper authorization for them to engage and respond to the incoming messages, but instead quickly decided to proceed without authorization. In the face of clear uncertainty, the police should have exercised caution, and not opted to engage in an intrusive and prospective investigative technique. We have found that there were no exigent circumstances and that this technique could not be authorized pursuant to s. 11 of the CDSA. These findings exacerbate the seriousness of the Charter‑infringing conduct.

[ 345 ] A final factor is that the multiple Charter breaches in this case further aggravate the seriousness of the police's conduct. Although the trial judge found no s. 8 breach in respect of the police's text message conversation with Mr. Campbell, he did find that the police engaged in an unauthorized search of Mr. Campbell's phone following his arrest, despite there being no compelling risk at the time that the evidence on the phone would be lost or destroyed. This constituted a separate breach of Mr. Campbell's s. 8 rights (voir dire reasons, at paras. 124-28). This Court has previously situated police misconduct on the graver end of the scale where there are multiple "serious Charter breaches throughout the investigative process" (Reeves, at para. 65).

[ 346 ] The absence of exigency or impracticability, combined with a legally questionable technique, and the additional breach of Mr. Campbell's s. 8 rights cumulatively militate against admission of the evidence.

(2) The Impact of the Breach on the Accused's Charter-Protected Interests

[ 347 ] The second Grant 2009 factor strongly favours exclusion of the evidence.

[ 348 ] From a reasonable expectation of privacy perspective, Mr. Campbell had a substantial Charter-protected interest in the conversation he had with Mr. Gammie. The conversation revealed private information that went to Mr. Campbell's biographical core. We would reject the respondent's invitation to find that the impact of the breach on Mr. Campbell's privacy interests was diminished because the conversation "did not reveal intimate details" about him (R.F., at para. 110). Although the text messages pertained to directions and updates on the estimated time of arrival, taken as a whole, they clearly reflected Mr. Campbell's criminal "lifestyle and personal choices", something that was obvious to police at the time of their use of the investigative technique (Marakah (SCC), at paras. 32 and 54; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 32). Communicating by text message automatically creates a written record of our conversations — and the Charter is designed to protect against the insidious possibility that the state may, "in its unfettered discretion", access those records (Marakah (SCC), at para. 40; see also Duarte, at p. 44).

[ 349 ] The impact of the breach on Mr. Campbell's Charter-protected privacy interest was aggravated by the intrusive nature of the investigative technique. As noted by the Court of Appeal below, the police technique employed here was "far more intrusive" than merely inspecting a conversation between two other individuals, which is what occurred in Marakah (SCC) (para. 71). Here, the police actively participated in creating the record of the criminal prosecution against Mr. Campbell by posing as another individual with whom he understood to be having a private conversation. We have highlighted why this police technique results in a particularly high degree of intrusion in our analysis on the reasonable expectation of privacy.

[ 350 ] Discoverability may be useful for assessing the impact of the breach. It allows a court to assess the strength of the causal connection between the resultant evidence and the Charter infringement (see R. v. Beaver, 2022 SCC 54, at para. 125, citing Grant 2009, at para. 122). In the present case, it is solely through impersonating Mr. Gammie that police caused the incriminating texts to be sent and manufactured the drug transaction. The text message evidence was only discoverable through the Charter breach, which results in a greater impact on the accused's Charter-protected interests (Tim, at para. 94). The strong causal connection between the Charter breach and the evidence obtained amplifies the impact on Mr. Campbell.

(3) Society's Interest in the Adjudication of the Case on Its Merits

[ 351 ] The third Grant 2009 factor favours admission of the evidence (A.F., at para. 64).

[ 352 ] The evidence obtained pursuant to the police's investigative technique — the text message conversation, as well as the appearance of Mr. Campbell with the drugs at the residence — is reliable evidence of a serious crime (Grant 2009, at para. 81). Exclusion of this evidence would "effectively gu[t] the prosecution" against Mr. Campbell (para. 83). In such circumstances, society has a strong interest in the adjudication of the case against Mr. Campbell on its merits.

[ 353 ] Nevertheless, we stress that the seriousness of the offence in this case — fentanyl trafficking — is not determinative of the analysis at the third stage of Grant 2009. In the sentencing context, fentanyl trafficking has been recognized as an extremely serious offence given the potency and potential lethality of the drug — which, logically within the sentencing realm of law, leads to increases in penalties for this crime (see, e.g., Parranto). However, in the context of s. 24(2) of the Charter, the seriousness of the offence "has the potential to cut both ways" (Grant 2009, at para. 84). While the public's interest in a determination on the merits is heightened where the offence charged is serious, "it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high" (ibid. (emphasis added)). In line with this principle, this Court has excluded evidence under s. 24(2) even where there was reliable evidence of extremely serious offences — including trafficking 35 kilograms of cocaine (R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494); trafficking in firearms (Marakah (SCC)); and possessing and accessing child pornography (Reeves). Mr. Campbell was found trafficking half an ounce of heroin laced with fentanyl. Arguing that admission will always be the result where the evidence is reliable and the charge is serious is clearly "not the law" (Harrison, at para. 40).

[ 354 ] While the third Grant 2009 factor overall favours admission, this is not the end of the inquiry. We must balance all three factors to determine whether admission of the evidence would bring the administration of justice into disrepute.

(4) Balancing the Factors

[ 355 ] We are of the view that the evidence should be excluded. Police bypassed the prospect of even attempting to obtain a warrant despite there being no evidence that obtaining a warrant was impracticable in the circumstances. The purpose of exclusion of evidence under s. 24(2) of the Charter is not "to punish police or compensate for a rights infringement" (Le, at para. 139). Rather, s. 24(2) directs that "evidence must be excluded" if doing so is necessary to "maintain the 'integrity of, and public confidence in, the justice system'" (ibid. (emphasis in original), citing Grant 2009, at paras. 68‑70).

[ 356 ] The protections afforded by s. 8 of the Charter — including the high bar for exigent circumstances that can justify a warrantless search — do not automatically fall by the wayside just because police believe fentanyl is likely to be involved in a drug transaction. Although the police's belief proved correct in Mr. Campbell's case, "for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge" (Grant 2009, at para. 75). This concern is ever present where police may be inclined to dilute exigent circumstances in the name of preventing a risk of serious harm occurring, even if that risk is remote, uncertain, or never materializes at all. The long-established presumption against warrantless searches, and the need to respect the bounds of any clearly circumscribed exceptions to this rule, remain vital prerequisites to ensuring s. 8 is not categorically whittled away.

[ 357 ] Balancing the Grant 2009 factors in this case, both the first and second strongly favour exclusion. In such a case, this Court has noted that the third factor "will seldom if ever tip the balance in favour of admissibility" (Le, at para. 142; Paterson, at para. 56). On balance, we are satisfied that the administration of justice would be brought into disrepute by the admission of this evidence. The evidence should be excluded.

IV. Disposition

[ 358 ] We would allow the appeal, set aside the appellant's convictions, and enter acquittals.

Appeal dismissed, Karakatsanis, Martin and Moreau JJ. dissenting.

Solicitors

Solicitors for the appellant: Hicks Adams, Toronto; Daley, Byers, Toronto.

Solicitor for the respondent: Public Prosecution Service of Canada, Ontario Regional Office, Toronto.

Solicitor for the intervener the Attorney General of Ontario: Ministry of the Attorney General, Crown Law Office — Criminal, Toronto.

Solicitor for the intervener the Director of Criminal and Penal Prosecutions: Director of Criminal and Penal Prosecutions, Montréal.

Solicitor for the intervener the Attorney General of Alberta: Alberta Crown Prosecution Service, Appeals and Specialized Prosecutions Office, Calgary.

Solicitors for the intervener the National Council of Canadian Muslims: Paliare Roland Rosenberg Rothstein, Toronto; National Council of Canadian Muslims, Ottawa.

Solicitors for the intervener the Criminal Lawyers' Association (Ontario): Stockwoods, Toronto; Savard Foy, Toronto.

Solicitors for the intervener the Canadian Civil Liberties Association: Stockwoods, Toronto.

Solicitors for the intervener the Criminal Trial Lawyers' Association: Wolch Wilson Jugnauth, Calgary; Pringle Law, Edmonton.

Solicitors for the intervener the British Columbia Civil Liberties Association: Pringle Law, Vancouver; British Columbia Civil Liberties Association, Vancouver.

Solicitors for the intervener the Trial Lawyers Association of British Columbia: Peck and Company, Vancouver.

Solicitors for the intervener the Independent Criminal Defence Advocacy Society: MN Law, Vancouver; Harper Grey, Vancouver.