Five Nelson police officers accused of sharing racist content in a WhatsApp group chat have begun a constitutional challenge that argues their privacy was infringed by the B.C. Police Act.
A petition made to the B.C. Supreme Court on Aug. 22 says the means by which the Police Act was used to obtain the chat logs contravened Section 8 of the Canadian Charter of Rights and Freedoms, which states "everyone has the right to be secure against unreasonable search or seizure."
The lawsuit is brought forward by current Nelson Police Department officers Nathaniel Holt, Adam Sutherland and Sarah Hannah, as well as Jason Anstey who remains active with another unnamed force and retired officer Robert Armstrong.
When contacted by email, the officers' lawyer Christine Joseph said the case should be considered important by every municipal B.C. officer.
"Any time there is an investigation under the Police Act, officers – whether accused of misconduct or just witnesses - are at risk of having the contents of their personal phones, text and instant messaging, search and call history, photos, social media accounts and the like seized and reviewed by an investigator."
B.C. Attorney General Niki Sharma is named as a defendant. A spokesperson for the attorney general declined to comment when contacted by the Nelson Star.
The lawsuit, first reported by the Vancouver Sun, says the Nelson officers had “reasonable expectation of privacy in the WhatsApp communications; the law authorizing the search and seizure is unreasonable; and the search and seizure were carried out in an unreasonable manner.”
Six officers have been under investigation since February 2022 by the Office of Police Complaint Commissioner (OPCC), which is the provincial oversight body for complaints against B.C.’s municipal forces.
The court documents issued to the B.C. Supreme Court are the first public disclosure of five of the six officers' identities. NPD Deputy Chief Raj Saini said in an email he is limited on what he can say while legal proceedings are underway.
"Our commitment remains to uphold our department's highest standards of professionalism and accountability. We take all allegations and disciplinary matters seriously and will ensure they are addressed accordingly."
The contents of the chat group are not revealed in the petition.
Their petition says the conversations between officers from March 2019 to January 2021 took place on WhatsApp because it was considered secure due to its end-to-end encryption. Those conversations ended, it says, because the chat was no longer thought to be private.
The contents of the chat were obtained from Sutherland by investigating officer Sgt. Scott Hyde of the Vancouver Police Department, who had been assigned the case by the OPCC.
The Police Act states no warrant is required for an investigating officer to obtain any equipment or device used by a current or former member on the premises of a municipal department, as well as any records in the department's custody.
Section 103 of the Act extends these searches to properties outside the department, albeit with a justice's approval, if "there are reasonable grounds to believe that there is in the place a record or thing that relates to the investigation."
That section, the lawsuit argues, is in contravention of the Charter because the conversations were not produced in the ordinary course of employment.
“Section 103 does not strike a reasonable balance between the administration of police discipline and the Petitioner’s privacy rights. ... Personal smartphones and private electronic communications are deserving of the highest protection from state intrusion.”
There is no date yet scheduled for a hearing on the lawsuit. The petition says the OPCC's discipline proceedings are set to resume Nov. 12-15.
None of the accusations against the officers have yet to be proven.
