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Police - Techniques. R. v. Campbell
In R. v. Campbell (SCC, 2024) the Supreme Court of Canada dismissed a criminal appeal, this from a dismissal of an Ontario Court of Appeal, and that from a trial judge's finding that convicted the defendant "of trafficking and possession offences under the CDSA and sentenced him to a term of imprisonment".
Here the court considers the interesting issue of police using a cell phone that was found with an arrestee to negotiation a further drug buy, and whether that attracted any Charter 8 search concerns - and then further whether the use of the text message function is different (it is):(e) Undercover Police Work Is Not Imperilled
[69] The Crown further argues that the police impersonation of Mr. Gammie was simply an undercover police investigation, and was therefore not a search under s. 8. It cites the comments of Karakatsanis J. on behalf of a minority of the Court in Mills, that “s. 8 does not prevent police from communicating with individuals in the course of an undercover investigation”, and that “an individual cannot reasonably expect their words to be kept private from the person with whom they are communicating” (para. 42). The Crown says that simply because an interlocutor turns out to be an undercover police officer does not convert a text message conversation into a search, and that accepting Mr. Campbell’s privacy claim would lead to “a society bereft of undercover police work” (R.F., at para. 55).
[70] Like the Court of Appeal, I would reject this argument. I accept that there is nothing necessarily improper in the police answering the phone of an arrested person and speaking with an unsuspecting caller, as occurred in R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520. But speaking with a caller on a telephone is constitutionally different from creating a permanent electronic record of the communication through a surreptitious sound recording or by using the medium of text messaging. The surreptitious recording of a communication by the police is a search and seizure for constitutional purposes. As La Forest J. stated in Duarte, “[a] conversation with an informer does not amount to a search and seizure within the meaning of the Charter. Surreptitious electronic interception and recording of a private communication does” (p. 57). Likewise, as Arbour J. stated in R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535, at para. 12, “a conversation with an informer, or a police officer, is not a search and seizure. Only the recording of such conversation is”.
[71] In this case, the police did not surreptitiously record Mr. Campbell’s conversation. Instead, the medium of communication of text messaging itself generated the record of the conversation (TELUS Communications, at para. 34). That medium potentially gives rise to a reasonable expectation of privacy, but this does not in itself prevent undercover police work. Instead, it merely imposes constitutional constraints on police investigations involving text messaging by requiring the police to comply with s. 8 of the Charter (see Marakah; Jones).
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