B.C. police cite privacy rights as investigators probe contents of chat groups

The details of a private chat group among current and former members of the police department in Nelson, B.C., haven't been made public.

But the fate of an investigation by the province's Police Complaint Commissioner into the WhatsApp chats could have implications for police across the country, as the Nelson officers mount a court challenge to the constitutionality of the seizure of their personal phones.

The British Columbia police oversight body said in its 2022 investigation order that the conversations included "work-related communications, as well as pornographic images, internet memes, and other inappropriate material and comments."

Current officers Adam Sutherland, Nathaniel Holt and Sarah Hannah, and former Nelson officers Jason Anstey and Robert Armstrong all say in affidavits they "considered that the WhatsApp group was private and would remain private."

Their B.C. Supreme Court petition filed in August 2024 argues that the Police Act provision allowing for the search of officers' personal phones and seizure of private communications data "runs afoul" of the Canadian Charter's guarantee against unreasonable search and seizure.

"However laudable, the public interest in the effective administration of police discipline does not merit such a significant invasion of privacy," the petition says. 

Nelson police Chief Donovan Fisher said in a statement the department "took prompt and appropriate action in this matter and no further comment is appropriate while the resulting process is ongoing."

Other police chats under scrutiny

Deputy police complaint commissioner Andrea Spindler said in an interview that the ongoing disciplinary process hasn't been delayed by the court case. She said unless the investigation goes to a public hearing, she couldn't say whether the chat's contents would be made public. 

The Nelson group are among a string of officers in three police forces in B.C. who have come under disciplinary scrutiny because of their private group chats. 

Three Coquitlam RCMP officers face possible dismissal at a code of conduct hearing this month over what a fellow officer called "atrocious" and racist behaviour on encrypted messaging apps WhatsApp and later Signal.

Constables Ian Solven, Mersad Mesbah and Philip Dick also tried to exclude personal phone evidence from the case, but an RCMP conduct board rejected this, saying the public "puts its trust in police officers and if their wrongdoing goes unaddressed, confidence in the profession will be diminished."

Comments about sexual assault victim

A third case in B.C. meanwhile resulted in one former Vancouver Police Department officer being found to have committed discreditable conduct for sharing a screenshot in a private group chat that gave a disparaging account of court testimony by a female officer who was sexually assaulted.

A disciplinary decision in October 2024 found former Sgt. Narinder Dosanjh shared a screenshot of the "disrespectful" commentary, written by someone else, about the court testimony by the woman whose attacker was fellow Vancouver police officer Jagraj Roger Berar.

Berar was convicted in 2021 and sentenced to a year in jail for sexually assaulting his colleague. 

The "play-by-play" commentary in a chat group on the Signal messaging app had inaccurately predicted that there was "no way" Berar would be convicted, calling the victim a "bad drunk," who had been seen "cuddling, holding hands" with her attacker.

Documents obtained by The Canadian Press show that during the investigation of a complaint to the commissioner made by the victim, Vancouver officers admitted there were several chat groups using WhatsApp and Signal among members of the department.

Officers told the investigator the groups were used to arrange social gatherings, but also for police business, including overtime allocations and discussions of police files. 

A Freedom of Information Act request to the Vancouver Police Department produced no records about the chats. 

"The Signal messaging service is not an app that is authorized for use on VPD issued smartphones," Darrin Hurwitz with the department's Information and Privacy Unit said in an email.

Hurwitz said even if the department had the records, they do "not relate to the business of the VPD — it is therefore excluded from disclosure."

The Nelson officers' lawyer, Christine Joseph, declined to comment, as did the three Coquitlam RCMP officers.