Five current and former Nelson, B.C. police officers have filed a Charter challenge against the Office of the Attorney General after a personal phone and group chat search was carried out, during an investigation into allegedly racist and inappropriate WhatsApp messages.

The challenge, filed on Aug. 22, comes as the Office of the Police Complaint Commissioner (OPCC), which falls under the attorney general, has scheduled a disciplinary hearing into the WhatsApp message matter. The investigation was first brought to light in 2022 and has seen a number of officers accused of discreditable conduct.

Last year, the office found that allegations of discreditable conduct, due to the sharing of inappropriate messages, were substantiated against six Nelson Police Department (PD) officers, and two were cleared of wrongdoing. Nelson is about 345 kilometres southeast of Kelowna.

Now, five current and former officers have said that the search of their group chats, which they accessed from their personal phones, and of one officer’s personal phone during the OPCC investigation was unconstitutional, as they had a reasonable expectation of privacy.

They also said the law granting the search was unreasonable, and the search itself was carried out in an unreasonable manner.

“The petitioners submit that administration of police discipline is not sufficiently important to override an individual’s right to privacy over a biographical core of information in a free and democratic society,” reads the petition.

The petitioners are asking for the B.C. Supreme Court to declare sections of the Police Act, which gave the authority for the search, as invalid.

None of the officers’ claims have been tested in court. They are yet to face discipline for the allegations of discreditable conduct, with a hearing scheduled for November this year.

The petition was filed by the officers in B.C. Supreme Court earlier in August. (Peter Scobie/CBC)

Over 22 months of messages

According to the petition, the WhatsApp group in question was set up in March 2019 and ran until January 2021.

Const. Jason Anstey specifically picked WhatsApp, according to the petition, as the platform touts “end-to-end encryption” and privacy for the user. The petition further adds that the phones used to access the group were password protected.

In February 2022, the OPCC announced an investigation into the officers in the group chat, and appointed a Vancouver police sergeant as the officer investigating the allegations — which is standard procedure for B.C.’s police watchdog.

Later that year, in May, the investigating officer obtained a search order under Section 103 of the Police Act to search Const. Adam Sutherland’s phone as part of the investigation.

A Vancouver Police Department officer was assigned to investigate the allegations of discreditable conduct, which is standard procedure followed by the Office of the Police Complaints Commissioner. (Darryl Dyck/The Canadian Press)

Section 103 states that an investigating officer can obtain a search order if a judge is satisfied that “there are reasonable grounds to believe that [an officer’s] conduct would, if substantiated, constitute misconduct.”

After searching the chat and questioning the officers, in February 2023, the allegations against Sutherland, Anstey, Sarah Hannah, Nathaniel Holt and Robert Armstrong — all of whom are either current or former Nelson PD officers — were found to have been substantiated.

The disciplinary hearing into the matter, which could result in a variety of sanctions and even dismissal, was pushed until November this year due to the officers alleging the search was unconstitutional.

According to the petition, the officers chose WhatsApp as the platform touts its secure nature. (Martin Meissner/The Associated Press)

“Constable Sutherland’s personal smartphone and the petitioners’ encrypted WhatsApp conversations are deserving of the fullest protection of privacy,” reads the petition.

“The search and seizure in this case amounted to a significant invasion of privacy by the state.”

The petition further states that Section 103 is too broad in its scope, and would allow investigating officers to get search orders very easily.

Rajnish Saini, the deputy chief of the Nelson PD, told CBC News in an email the department couldn’t comment as the matter is before the courts, and that it would fully co-operate with legal proceedings.

The Office of the Attorney General and the OPCC were not immediately available to comment.