Summary

40465

Dwayne Alexander Campbell v. His Majesty the King

(Ontario) (Criminal) (By Leave)

Keywords

Charter of Rights — Search and seizure (s. 8) — Enforcement (s. 24) — Exigent circumstances — Police seizing cellphone in search incident to the arrest of a known drug dealer — Incoming text messages from appellant visible on its screen — Police believing messages concerned impending drug deal involving fentanyl — Police impersonating drug dealer, facilitating drug transaction with the appellant via text message — Whether police breached appellant’s s. 8 rights by warrantless use of drug dealer’s cellphone to impersonate drug dealer and engage in electronic conversation with accused — Whether police action justified by exigent circumstances because the police reasonably believed the drug transaction may have involved fentanyl — Whether police breached the appellant’s s. 8 rights by intercepting private communications without authorization — Whether evidence obtained by s. 8 breaches should have been excluded — Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 11; Criminal Code, R.S.C. 1985, c. C-46, Part VI

Summary

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Police seized a cellphone during a search incident to the arrest of a known drug dealer. The phone was displaying incoming text messages on its screen. The police believed the messages revealed a transaction for heroin, which would likely be laced with fentanyl, was in progress.

The police impersonated the drug dealer by responding to the text messages, and arranged to have the drugs delivered to the dealer’s residence. Applicant Dwayne Alexander Campbell arrived at the residence and was arrested. Mr. Campbell was charged under the Controlled Drugs and Substances Act (CDSA). At trial, Mr. Campbell brought a motion to exclude evidence, claiming that his rights under s. 8 of the Charter had been infringed by the police action in using the dealer’s phone to communicate with him. The trial judge rejected Mr. Campbell’s claim that he had a reasonable expectation of privacy in the text messages, and concluded that the likelihood that the drugs were laced with fentanyl created exigent circumstances that justified the warrantless use of the drug dealer’s cellphone. Mr. Campbell was convicted and sentenced.

The Court of Appeal held that Mr. Campbell did have a reasonable expectation of privacy in his electronic communications, but that the police action was justified by the exigent circumstances doctrine. Consequently, there was no breach of Mr. Campbell’s s. 8 rights. The Court of Appeal dismissed Mr. Campbell’s appeal.

Lower Court Rulings

March 4, 2019
Ontario Superior Court of Justice

2019 ONSC 1442
Application to exclude evidence pursuant to ss. 8 and 24 of the Charter dismissed
July 10, 2020
Ontario Superior Court of Justice

18-0539, 2020 ONSC 4172
Conviction on charges of trafficking in fentanyl, possession of fentanyl for the purpose of trafficking, trafficking in heroin, and possession of heroin for the purpose of trafficking
September 27, 2022
Court of Appeal for Ontario

2022 ONCA 666
Appeal from conviction and from sentence dismissed