Guelph police did not violate a drug dealer’s rights when they used a seized cell phone to text him to complete a fentanyl-laced heroin buy, an appeals court ruled on Tuesday in upholding the man’s conviction.
Dwayne Alexander Campbell was sentenced to five years, eight months in jail after being found guilty of possession and trafficking of both fentanyl and heroin in 2020. At that time, he was 41 years old.
He subsequently filed appeals of his conviction and sentence, with a hearing held May 9.
At issue, the appeal decision explained, was Guelph police’s use of a cell phone seized during the search of a home occupied by a “known drug dealer” in 2017. While the search was underway, one of the accused person’s cell phones lit up with text messages, which police read.
An officer responded, impersonating a third person, with the aim of having drugs delivered to the searched home.
Later that day, Campbell showed up but ran after seeing police. He was promptly arrested and found to be in possession of a cell phone featuring the texts in question as well as 14.33 grams of heroin mixed with fentanyl (something later confirmed through Health Canada testing).
“(Police) thought the messages revealed a drug transaction in progress – specifically, a transaction for heroin, which would likely be laced with fentanyl,” states the appeal decision from a three-judge panel. “The officers were concerned that if they did not follow through and gain control of these drugs, fentanyl might find its way onto the street.
“They considered this a public safety issue.”
The alleged rights violation was brought up during Campbell’s trial, with the judge concluding there were “exigent circumstances,” which is what inspired the appeal.
In seeking to have his sentence reduced, Campbell argued the trial judge erred by considering the presence of fentanyl as an aggravating factor, relying on the fact “it was never established what proportion of the 14.33-gram package seized from the appellant was fentanyl – it could have been nothing more than a trace amount.”
However, the appeal panel agrees it was an aggravating factor and the sentence stands.
