The Supreme Court of Canada ruled that a suspected drug sale constitutes an “exigent circumstance” that justifies warrantless search, which would otherwise be considered a violation of privacy under the Canadian Charter of Rights and Freedoms.

The case concerns the tension between the constitutional right to privacy and the police’s power to search when obtaining a warrant might be impracticable. Article 8 of the Charter protects Canadians’ privacy by prohibiting unreasonable searches and seizures. On the other hand, section 11(7) of the Controlled Drugs and Substances Act allows searches without a warrant if the police officers find themselves in an “exigent circumstance” where obtaining a warrant is impracticable. The dispute before the court, therefore, boils down to what amounts to an “exigent circumstance.”

Writing for the majority, Justice Mahmud Jamal recognized that the defendant had a reasonable expectation of privacy in his text message conversation. However, Justice Jamal maintained that the police acted reasonably under a reasonable belief that they were in an urgent situation involving a suspected sale of heroin laced with fentanyl, which called for immediate police action to prevent the drugs from being trafficked in the community.

The dissents, Justices Andromache Karakatsanis, Sheilah Martin and Mary Moreau, contended that the majority’s expansive understanding did not give sufficient protection to the right to privacy. The dissents stated that “exigent circumstances” must be narrowly understood as loss or destruction of evidence, hot pursuit of a fleeing suspect and an imminent, clear and concrete threat to public safety. In particular, the dissents argued that a suspected drug trade, which might have raised generalized, societal safety concerns, was insufficient to justify an “exigent circumstance.” Accordingly, the dissents opined that the police should have obtained a warrant to search the defendant’s phone or pursue other investigative strategies. The dissents would also have quashed the convictions under Section 24(2) of the Charter because the evidence was obtained by a breach of the defendant’s right to privacy.

In a separate concurring opinion, Justice Malcolm Rowe addressed the dissents’ concern. He noted that the police were required to decide whether to obtain judicial authorization in a volatile and uncertain situation where “minutes could well have made the difference between intercepting the fentanyl or having the opportunity to do so slip through their fingers.” Justice Rowe was satisfied that the police had reasonably considered the need for judicial authorization and the court should not exclude the evidence.

Notably, Justice Suzanne Côté argued that the defendant had no reasonable expectation of privacy on the electronic communications when the police assumed control over the device and the fact that the defendants barely knew each other.

Following an undisputed lawful arrest and search, the police assumed control of a defendant’s phone and impersonated that defendant to encourage another drug dealer to deliver the drugs to the police for over two hours. The defendants sought to exclude the electronic communications based on alleged violation of privacy.

Canada is currently facing an opioid crisis, with more than 34,400 apparent opioid toxicity deaths between 2016 and 2022.