R. v. Campbell

R. v. Campbell
Collection
Supreme Court Judgments
Date
2024-12-06
Neutral citation
2024 SCC 42
Case number
40465
Judges
Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; O’Bonsawin, Michelle; Moreau, Mary
On appeal from
Ontario
Subjects
Constitutional law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Campbell, 2024 SCC 42
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.
Dwayne Alexander Campbell Appellant
v.
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
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
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 rejected the accused’s argument that the police had conducted an unlawful interception of his electronic communications contrary to Part VI of the Criminal Code. In the further alternative, he would not have excluded the texts from evidence under s. 24(2) of the Charter. The accused was subsequently convicted of the charges against him and appealed his convictions. The Court of Appeal accepted that the accused had a reasonable expectation of privacy in his text message conversation and thus had standing to argue that the police violated his rights under s. 8. However, it concluded that the search was justified by exigent circumstances under s. 11(7) of the CDSA. Accordingly, it dismissed the appeal.
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. The search was thus reasonable and justified by law and did not breach s. 8.
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 expectation was objectively reasonable having regard to the totality of the circumstances. In making this evaluation, courts are guided by four lines of inquiry: (1) the subject matter of the alleged search; (2) whether the claimant had a direct interest in the subject matter; (3) whether the claimant had a subjective expectation of privacy in the subject matter; and (4) whether the claimant’s subjective expectation of privacy was objectively reasonable.
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. Second, a claimant would have a direct interest in a text message conversation if they participated in the conversation and wrote several of the texts at issue. Third, a claimant’s burden of establishing a subjective expectation of privacy in the subject matter of the alleged search is not a high hurdle. It can be presumed or inferred in the circumstances in the absence of the claimant’s testimony or admission at the voir dire. Fourth, in determining whether a subjective expectation of privacy is objectively reasonable, courts must employ an approach that is both normative and content‑neutral.
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 private information about the claimant. With respect to text messages in particular, the focus is not on the actual contents of the messages the police have seized, but rather on the potential of a given electronic conversation to reveal personal or biographical information, such as intimate details of the lifestyle and personal choices of the individual. In addition, the intrusiveness of the police technique in relation to the privacy interest at issue can be another important factor in assessing whether a claimant’s subjective expectation of privacy is objectively reasonable. This is a distinct consideration from whether the police acted lawfully at the second stage of the s. 8 inquiry.
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 conversations may be protected by a zone of privacy that extends beyond a person’s own mobile device to the recipient of the message, even when the person shares private information with others. The zone of privacy protected by s. 8 of the Charter involves the right to keep personal information safe from state intrusion.
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 of persuasion to the Crown to establish, on a balance of probabilities, that the search was reasonable.
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. For there to be an interception under Part VI, the police must use a device employing intrusive surveillance technology. Unless the police use intrusive surveillance technology, police deception or trickery does not amount to an interception under Part VI.
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 was truly incidental to the arrest, in that it was for a valid law enforcement objective connected to the arrest; and (3) the search was conducted reasonably. Valid law enforcement objectives include ensuring the safety of the police or the public, preventing the destruction of evidence, and uncovering evidence that could be used at trial.
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, which denote 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. Second, it must be shown that the conditions for obtaining a warrant existed, but that exigent circumstances rendered it impracticable to obtain a warrant, meaning that it was impossible in practice or unmanageable to obtain a warrant. Regarding the evidentiary threshold, the police must have reasonable and probable grounds, rather than merely reasonable suspicion, for the claimed exigency under s. 11(7). The Crown must establish the reasonable probability of the claimed exigency, based on the experience and expertise of the police and the relevant facts before them. As for the standard of appellate review, a trial judge’s assessment of the evidence and findings of fact in applying s. 11(7) attract substantial deference on appeal; however, 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 for correctness.
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. First, concerning the private nature of the subject matter, the alleged search of the accused’s text message conversation intruded into a medium of communication in which a reasonable person would ordinarily expect the utmost privacy. Second, the police used an especially intrusive investigative technique by inserting themselves into a conversation that was already underway, between two real people with a pre‑existing relationship, essentially hijacking the identity of one of the participants. Third, regarding the level of control over the information, the accused did not lose the protection of s. 8 of the Charter simply by sharing private information with the other party to his text message conversation or by using the phone of an acquaintance.
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 or device the accused had used to make the communication. However, the search of G’s cellphone was not incident to a lawful arrest as it was not a search strictly related to G’s arrest or the offence for which he was arrested. Instead, it was a search to collect evidence against D, who turned out to be the accused. Nonetheless, the police had authority for a warrantless search under s. 11(7) of the CDSA due to exigent circumstances. The police reasonably believed that they faced an urgent situation involving a suspected drug sale calling for immediate police action to prevent the drugs from being trafficked in the community imminently. The police also had reasonable and probable grounds to believe the transaction specifically involved heroin laced with fentanyl, which posed a grave risk to public safety. Although the police had grounds to obtain a warrant, it was impracticable to obtain one as only a telewarrant would have been available at that time of day and it would likely arrive too late to complete this transaction. Since 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.
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. While earlier case law can provide a degree of insight into exigent circumstances, it is not a basis to sidestep the law as stated in Paterson. Such an approach would undermine precedent and invite sophistry in legal argument.
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. If the police failed, they believed it could well lead to deaths in the community. This was a now‑or‑never situation. The Crown did not have to establish that D had another transaction lined up if the transaction with G fell through. This would implicitly elevate the evidentiary requirements for exigent circumstances beyond reasonable and probable grounds.
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 well have made the difference between intercepting the fentanyl or having the opportunity to do so slip through their fingers.
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.
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 or investigatory technique will constitute a search under the Charter. It is only if the police activity invades a reasonable expectation of privacy that the activity is a search. For claimants to benefit from s. 8 protection against unreasonable state conduct, they must have a subjective expectation of privacy in the putative search, and their subjective expectation must be objectively reasonable. Courts must make this assessment having regard to the totality of the circumstances of a given case. The Court’s decision in R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, did not create a categorical rule that all text message conversations or other electronic communications inherently attract a reasonable expectation of privacy. The totality of the circumstances test mandates an individualized and case‑by‑case analysis, requiring a court to treat an assessment under s. 8 as a contextual, fact‑based inquiry. While the normative approach to privacy is important to help ascertain the free and democratic society that reasonable and informed Canadians expect to live in, courts cannot lose sight of the totality of the circumstances of the specific cases before them and, accordingly, the police conduct therein.
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 were conducting an undercover investigation into criminal activity directly associated with the purpose underlying G’s arrest — a drug transaction. On a holistic view of the matter, it is clear that from the time they observed those four messages, the officers reasonably suspected that they were dealing with a drug transaction that was sufficiently connected to the arrest of G that had just been made. There was no pre‑existing conversation between the accused and G that the police searched. Instead, the police participated in the electronic exchange as part of an undercover drug investigation. Where the police execute a search warrant and the target’s phone rings, there is nothing wrong with the police answering that phone. The fact that text messages create a permanent record does not transform the analogous conduct in this case into a search or seizure.
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 way the police carried out the conversation with the accused, making sure not to ask any probing questions or deviate from facilitating the drug deal, ensured that no biographical core information was obtained through the conversation aside from what was already lawfully known to police from the first four messages. The police also did not intrusively search the contents of G’s phone, nor did they unlock it. The police were only focused on facilitating and completing the drug transaction.
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. The accused had, at best, a shared control with D over the phone. The place where the conversation occurs remains as one of several factors that must be weighed. The evidence is to the effect that the phone was D’s and was given to the accused to facilitate the drug transaction. The accused’s lack of ownership over both the phone and the first four messages is closely related to his lack of control over them. The four text messages did not come from the accused but were sent by D to G. The borrowed phone was also to be returned to D following the completed delivery.
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 his lack of control in a two‑party electronic conversation on cell phones that were owned by the parties to the conversation. The fact that there was even less control in the present case suggests that the accused’s expectation of privacy was significantly diminished and, indeed, entirely negated when the totality of the circumstances are considered. Furthermore, the accused barely knew G. Unlike the accused in Marakah, the accused here never asked G to keep their electronic communications private; nor did he ask him to delete any of the messages.
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.
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. With respect to exigent circumstances, the Court should avoid speculating about what other potential investigative techniques would have succeeded in the absence of a proper evidentiary foundation, such as applying for a production order. It is also unclear whether a production order would be enough to locate whoever was using D’s phone. Finally, the perceived intrusiveness of the police technique should not colour the Court’s analysis of the facts in the s. 24(2) Charter analysis. The law in Ontario at the time was that there was no reasonable expectation of privacy in a co‑accused’s cell phone. There was consequently no reason at all for police to think that interjecting themselves into the conversation was a problem. The police also already lawfully knew from the first four messages that whoever responded was involved in criminal activity, which should lessen the impact on the accused’s privacy interests. Where the circumstances of the police investigation significantly increase the reasonableness of the police conduct at the time, this should be considered in the analysis of whether the administration of justice would be brought into disrepute by the admission of the evidence.
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 obtained would bring the administration of justice into disrepute according to the factors considered under s. 24(2) of the Charter.
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 do not breach the individual’s privacy rights, the focus must remain on the potential of a given technique to reveal private information in the totality of the circumstances. Given the nature of the police conduct at issue, the breach of this privacy interest should be understood as involving a high degree of intrusion. The technique of hijacking an existing identity is predicated on exploiting an existing relationship between private actors, which has the potential to reveal to police deeply personal information. In contrast to a phone conversation, where the police’s ability to impersonate a person known to the caller is limited, within a text conversation, the potential for police to impersonate the recipient and deceive the sender is limited only by their opportunities to do so and the strictures of the law. It would gravely impact one’s trust in general, and one’s trust in the state, if the last text received from an acquaintance or family member was, instead, from the police in disguise. Recognizing that in a free and democratic society the privacy claim in personal text message conversations between individuals known to one another must be beyond state intrusion absent constitutional justification does not thwart the ability of police to investigate crimes and uncover evidence through searches. It simply requires police to have lawful authority to do so.
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 their actions, and that both the authorizing law and manner in which the search was conducted was reasonable. Courts have defined these situations with care and specificity. In the instant case, the search was not reasonable.
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. This transaction constituted a probe into a distinct potential offence committed by another person, which cannot be truly incidental to the reasons for G’s arrest.
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 authorized in advance. From the Court’s jurisprudence in the years after the Charter was first enacted, it is clear that exigent circumstances is a determination to be made with care and that the Court has consistently taken a narrow approach to this doctrine. A serious crime is not enough to establish exigency under a s. 8 analysis. Rather, it must be determined according to the parameters of the law. Where individual privacy interests are higher, such as in a home, the Court has delineated specific situations where exigency could justify intrusion in a given case, declining to recognize a general common law power. Privacy interests in electronic devices should be approached with similar care.
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; and whether those exigent circumstances rendered it impracticable for the police to obtain a warrant. The jurisprudence recognizes the main categories of exigency as loss or destruction of evidence, officer or public safety, and hot pursuit. While the safety branch is non‑controversial as the societal interest in protection of human life is strong, it has only been applied to override the requirement for prior authorization where the threat to safety is imminent, clear, and concrete. The jurisprudence supports a narrow and strict application of the safety branch. A generalized, societal safety concern cannot be sufficient to justify warrantless action unless it poses an imminent threat.
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 authorities permitting warrantless acquisition of real‑time communications, the circumstances of this case extend well beyond the recognized safety branch of the doctrine of exigent circumstances. Even accepting that the quantity and type of drugs involved posed a risk of potential harm to public safety, the circumstances fall well short of the requirement of an imminent risk to an individual or group. The jurisprudence does not support a conclusion that the potential sale and subsequent use of a harmful drug constitutes exigency in the absence of a risk of imminent danger to police or public safety. To define these as exigent circumstances is to invite such a characterization whenever a potential drug transaction involves a dangerous substance regardless of the absence of imminent harm. This wrongly elevates the appropriate and ever‑present concern over public safety into exigent circumstances because of the health risks associated with the use of unregulated illicit drugs. The result will be to authorize invasive and extensive police conduct outside of those rare instances in which the harm to public safety is so imminent and immediate, a prima facie unreasonable warrantless search is judged to be reasonable. This approach waters down the statutory regimes Parliament has enacted to regulate and restrict warrantless searches, and the protection of s. 8, which is both embodied in those regimes and exists independently of them. It is not the impracticability of obtaining the warrant that supports a finding of exigent circumstances. That it would be difficult or inconvenient to obtain a warrant is not sufficient to meet this legal standard. Rather, the exigency must be shown to cause impracticability. Since there were no exigent circumstances here, it follows that the practicable option was for the police to obtain a warrant to search G’s phone or pursue other investigative steps.
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. The first factor favours exclusion of the evidence: the absence of exigency or impracticability, combined with a legally questionable police technique, and the additional breach of the accused’s s. 8 rights following arrest cumulatively militate against admission of the evidence. The second factor also favours exclusion. The accused had a substantial Charter‑protected privacy interest in the conversation he had with G, which revealed private information that went to the accused’s biographical core. The impact of the breach on this interest was aggravated by the intrusive nature of the investigative technique. The strong causal connection between the Charter breach and the evidence obtained amplifies the impact on the accused. The third factor favours admission of the evidence. While the seriousness of the offence of fentanyl trafficking is not determinative of the analysis at the third stage, here, the evidence obtained is reliable evidence of a serious crime and its exclusion would effectively gut the prosecution against the accused. In such circumstances, society has a strong interest in the adjudication of the case on its merits. Where both the first and second factors strongly favour exclusion of the evidence, the third factor will seldom if ever tip the balance in favour of admissibility. On balance, the administration of justice would be brought into disrepute by the admission of the evidence.
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. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3; 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. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520; R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Caslake, [1998] 1 S.C.R. 51; Wakeling v. United States of America, 2014 SCC 72, [2014] 3 S.C.R. 549; Imperial Oil v. Jacques, 2014 SCC 66, [2014] 3 S.C.R. 287; R. v. McQueen (1975), 25 C.C.C. (2d) 262; Lyons v. The Queen, [1984] 2 S.C.R. 633; R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343; R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531; R. v. Hafizi, 2023 ONCA 639, 168 O.R. (3d) 435; R. v. Bordage (2000), 146 C.C.C. (3d) 549; R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Stairs, 2022 SCC 11, [2022] 1 S.C.R. 169; Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Grant, [1993] 3 S.C.R. 223; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37; R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350; R. v. Beaver, 2022 SCC 54; R. v. Pawar, 2020 BCCA 251, 393 C.C.C. (3d) 408; R. v. McCormack, 2000 BCCA 57, 133 B.C.A.C. 44; 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; Crampton v. Walton, 2005 ABCA 81, 40 Alta. L.R. (4th) 28; R. v. Silveira, [1995] 2 S.C.R. 297; R. v. Phoummasak, 2016 ONCA 46, 350 C.R.R. (2d) 370; R. v. Webster, 2015 BCCA 286, 374 B.C.A.C. 129; R. v. Hunter, 2015 BCCA 428, 378 B.C.A.C. 165; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366; R. v. Kelsy, 2011 ONCA 605, 280 C.C.C. (3d) 456; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. J.F., 2022 SCC 17, [2022] 1 S.C.R. 330; Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; Ontario (Attorney General) v. Restoule, 2024 SCC 27.
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. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Wise, [1992] 1 S.C.R. 527; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. Edwards, [1996] 1 S.C.R. 128, aff’g (1994), 73 O.A.C. 55; R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. J.J., 2022 SCC 28; R. v. Knelsen, 2024 ONCA 501; R. v. Rafferty, 2018 ONCJ 881, 424 C.R.R. (2d) 88; R. v. Devic, 2018 BCPC 318; R. v. Bear‑Knight, 2021 SKQB 258, [2022] 2 W.W.R. 537; R. v. Findlay, 2023 MBPC 17, 529 C.R.R. (2d) 284; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. M. (M.R.), [1998] 3 S.C.R. 393; R. v. Bykovets, 2024 SCC 6; R. v. Labelle, 2019 ONCA 557, 379 C.C.C. (3d) 270; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; R. v. Liew, [1999] 3 S.C.R. 227; R. v. Ramelson, 2022 SCC 44; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Howell, 2011 NSSC 284, 313 N.S.R. (2d)