A group of five British Columbia, Canada police officers accused of misconduct after allegedly sharing racist and inappropriate memes within a WhatsApp group chat initiated a challenge Wednesday against the BC Attorney General, according to local media. The officers argue that the investigative powers established under the province’s Police Act violate privacy rights under Section 8 of the Canadian Charter of Rights and Freedoms.
The privacy challenge targets section 103 of the British Columbia Police Act, which allows judges to authorize searches on certain premises that may potentially contain evidence of police misconduct. The act empowers police to seize a wide range of different electronics and personal belongings and even demand personal information or belongings without judicial authorization for the seizure of that specific article. Typically, under Canadian constitutional jurisprudence, the seizure of personal electronic belongings requires judicial authorization for the police to search that electronic article in specific, or online activity, as affirmed in cases such as R v. Spencer and R v. Bykovets.
Within their petition, the officers argue that section 103 infringed upon their reasonable expectation of privacy with regard to their personal conversations, according to local media. Section 8 of the Canadian Charter of Rights and Freedoms protects against unreasonable search and seizure and has been interpreted to protect the privacy of Canadian citizens from a wide range of governmental intrusions including unreasonable search of their electronic belongings and communication. Notably, R v. Cole clarifies that a form of digital possession or communication is protected if the expectation of privacy from the individual possessing the device or communication is “reasonable.”
The officers argue that the intimate and private nature of the texts in the group chat provides a reasonable expectation of privacy is protected under the Charter and requires specific judicial authorization to be procured for investigation. As a remedy for the alleged violation, the petitioners asked the court to render section 103 of the Police Act “of no force and effect”, local media claims.
The allegations against the officers first surfaced after a series of complaints were made about inappropriate, racist and pornographic content shared within a WhatsApp group chat between 2018 and 2020. The group chat had originated as a place for conversation between officers. However, the subject matter gradually shifted towards memes and sexualized content. Following the complaints, Vancouver police opened an investigation into the matter, at the request of British Columbia’s police watchdog, and substantiated misconduct allegations against multiple current and former members. At least 2 were exonerated. However, further evidence of the nature of the substantiated allegations was not provided, and the police disciplinary authority has yet to decide on punitive measures.
