{"id":57096,"date":"2026-06-09T10:28:35","date_gmt":"2026-06-09T10:28:35","guid":{"rendered":"https:\/\/my.legal500.com\/developments\/?post_type=press_releases&p=57096"},"modified":"2026-06-09T10:28:35","modified_gmt":"2026-06-09T10:28:35","slug":"when-private-actors-become-state-agents-two-cases-to-watch-at-the-supreme-court-of-canada","status":"publish","type":"press_releases","link":"https:\/\/my.legal500.com\/developments\/press-releases\/when-private-actors-become-state-agents-two-cases-to-watch-at-the-supreme-court-of-canada\/","title":{"rendered":"When private actors become state agents: Two cases to watch at the Supreme Court of Canada"},"content":{"rendered":"

On May 21, 2026, the Supreme Court of Canada granted leave to appeal in two cases that, while arising in different contexts, both grapple with a fundamental tension in Canadian law: the boundary between private action and state power, and the consequences when that boundary is blurred.<\/strong><\/p>\n

<\/p>\n

In\u00a0R. v. Pham<\/em>, the British Columbia Court of Appeal ordered a new trial after finding the trial judge erred in assessing whether courier company employees became \u201cstate agents\u201d when they set aside packages at police request. If parties are found to have been \u201cstate agents\u201d, their actions become subject to Charter scrutiny since they essentially acted as an extension of the government. In\u00a0McCormack v. Evans<\/em>, the Ontario Court of Appeal upheld the admissibility of wiretap evidence, obtained through police deception, at a civil trial, while dismissing claims against officers for malicious prosecution and related torts.<\/p>\n

Both cases involve police investigative conduct that blurred proper boundaries, enlisting private actors in Pham and misrepresenting sources in\u00a0McCormack<\/em>, and raise questions about how such shortcuts affect evidence admissibility. Both will require the Supreme Court to clarify principles at the intersection of Charter rights, police powers, and the distinct objectives of criminal and civil proceedings.<\/p>\n

The cases also illustrate the divergent treatment of evidence in criminal versus civil proceedings. In Pham, the issue was whether a s. 8 Charter breach had occurred and whether evidence should be excluded under s. 24(2). In\u00a0McCormack<\/em>, the Court emphasized that civil trials are governed by different principles, the \u201cpursuit of truth\u201d is paramount, and Charter-based exclusion operates differently where there is no jeopardy or potential loss of liberty.<\/p>\n

Together, these cases offer a window into how Canadian courts navigate the competing demands of constitutional compliance, truth-seeking, and fair process across different legal domains.<\/p>\n

R. v. Pham,\u00a02025 BCCA 324<\/a><\/strong><\/p>\n

In May 2019, CBSA officers intercepted two packages containing methamphetamine at the Vancouver International Airport, one bearing the appellant\u2019s fingerprint. The packages had been shipped by a courier company in Nanaimo by someone named William McGuire on behalf of a fictitious company. After the RCMP alerted the courier company employees, Mr. McGuire delivered further packages on May 15, 17, and 23, 2019. The employees processed the packages in accordance with their usual procedure but then set them aside for warrantless seizure by the RCMP. The packages were subsequently searched pursuant to a warrant and found to contain multiple kilograms of methamphetamine.<\/p>\n

On May 23, the RCMP arrested the appellant. Subsequent searches yielded cash, waybills, phones, fentanyl, cocaine, and firearms. The appellant was convicted of ten offences. The trial judge dismissed his s. 8 Charter challenges and declined to exclude the evidence under s. 24(2). On appeal, Mr. Pham argued, among other grounds, that the trial judge erred in finding the courier company employees did not act as \u201cstate agents.\u201d<\/p>\n

Analysis of the British Columbia Court of Appeal<\/em><\/p>\n

Writing for a unanimous Court, Justice DeWitt-Van Oosten held that the trial judge committed reversible error. The Court confirmed the legal test: whether the impugned conduct \u201cwould have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents.\u201d Rather than applying this test, the trial judge asked whether there was anything wrong generally with police \u201cenlisting the assistance of members of the public in the investigation, detection and prevention of crime.\u201d The Court held this was an error of law reviewable on a standard of correctness.<\/p>\n

The Court also found that the trial judge misapprehended the evidentiary record. The courier company employees testified that the RCMP asked them to notify police if the suspected shipper returned, set aside packages for RCMP retrieval, take photographs, and obtain vehicle licence plate numbers. The employees testified that they took these steps because the police asked them to, that these actions were outside their regular duties, and that, but for the RCMP\u2019s involvement, the packages would have remained in the mail stream. The trial judge\u2019s finding that the employees \u201cwere simply going about their normal business\u201d failed to account for this evidence. The Court allowed the appeals and ordered a new trial.<\/p>\n

On May 21, 2026, the Supreme Court of Canada granted the Crown leave to appeal. The Supreme Court\u2019s consideration of this case may provide further guidance on the test for state agency under s. 8 of the Charter and the circumstances in which police interactions with private actors transform those actors into agents of the state.<\/p>\n

McCormack v. Evans,\u00a02025 ONCA 767<\/a><\/strong><\/p>\n

The appellant, William McCormack, was a plainclothes officer with the Toronto Police Service responsible for Liquor Licence Act enforcement. An organized crime investigation, implicated him in bribery and corruption. The lead investigator, Evans, obtained judicial authorization to intercept the appellant\u2019s private communications based on an affidavit that deliberately misdescribed two individuals as confidential informants (CIs) when they were not. The intercepted communications captured the appellant engaging in highly incriminating conversations about receiving payments and warning bar owners of inspections.<\/p>\n

The appellant was charged with numerous criminal offences. The corruption charges were stayed for delay under s. 11(b) of the Charter, and the remaining charges were withdrawn by the Crown, who opined that a s. 8 breach would be \u201cinevitable\u201d given the misdescription. The appellant commenced a civil action alleging malicious prosecution, negligent investigation, misfeasance in public office, intentional infliction of emotional distress, and Charter damages. The trial judge dismissed the action, and the appellant appealed.<\/p>\n

Analysis of the Ontario Court of Appeal<\/em><\/p>\n

On the admissibility of wiretap evidence, the Court held that, absent a judicial determination of invalidity, the wiretap authorization was presumed to be valid. The Crown\u2019s opinion that a s. 8 breach was \u201cinevitable\u201d was a lawyer\u2019s submission, not a judicial finding. Critically, the Court held that even if the evidence would have been excluded at a criminal trial, this would not dictate admissibility in civil proceedings. The Court emphasized that \u201cthe analysis of whether or not to exclude evidence for a Charter breach is entirely different in the civil context than in the criminal context.\u201d In criminal proceedings, constitutional principles may override truth-seeking objectives where the state wields coercive power against an individual facing jeopardy and potential loss of liberty. In civil proceedings, the parties do not face such risks. The Charter does not determine admissibility; instead, admissibility is governed by the common law, balancing probative value against prejudicial effect, as informed by Charter values. The Court found the intercepted communications highly probative and their exclusion would have marked \u201ca departure from factual reality, common sense, and the pursuit of justice.\u201d<\/p>\n

On reasonable and probable grounds, the Court upheld the trial judge\u2019s finding that Evans\u2019 deception did not negate a genuine belief in the appellant\u2019s guilt. The deception related to the status of the sources as confidential informants, not the content of their evidence. The charges were based on the appellant\u2019s own incriminating utterances captured by the wiretap. The Crown\u2019s withdrawal of charges was based on the potential for Charter exclusion, not the unreliability of the investigators\u2019 grounds.<\/p>\n

The Court dismissed the appellant\u2019s remaining civil claims. Malicious prosecution and negligent investigation failed because the appellant could not establish the absence of reasonable and probable grounds to prosecute him. Misfeasance in public office failed because the respondents were not motivated by animus. Intentional infliction of emotional distress was dismissed because, although Evans\u2019 misdescription was \u201cimproper,\u201d the appellant had \u201cnot shown that it was calculated to cause harm.\u201d The Charter damages claim failed because the appellant did not establish that the wiretap authorization was invalid.<\/p>\n

On May 21, 2026, the Supreme Court of Canada granted leave to appeal this decision. The grounds for appeal remain to be seen.<\/p>\n

Looking ahead: Why these cases matter<\/em><\/p>\n

The simultaneous grants of leave in\u00a0Pham and McCormack<\/em>\u00a0signal the Supreme Court\u2019s interest in clarifying the boundaries of state agency and the consequences of investigative irregularities. While the cases arise in distinct procedural contexts (one criminal, one civil), they share a common thread: police investigative conduct that blurred established boundaries, and the legal implications when that conduct is later scrutinized.<\/p>\n

In\u00a0Pham<\/em>, the Supreme Court will have an opportunity to provide authoritative guidance on the test for state agency under s. 8 of the Charter. The Court of Appeal\u2019s decision reaffirmed the Buhay framework, asking whether the private actor\u2019s conduct would have occurred \u201cin the form and manner in which it did\u201d but for police intervention, while highlighting how easily that test can be misapplied. The Supreme Court\u2019s decision may clarify the threshold at which police requests for assistance transform cooperative citizens into agents of the state.<\/p>\n

In\u00a0McCormack<\/em>, the central issues are the admissibility of evidence obtained through investigative deception and the standard for establishing reasonable and probable grounds. The Court of Appeal held that wiretap evidence remains admissible in civil proceedings, even where the underlying authorization may have been tainted by police misconduct. This reflects a fundamental distinction: in criminal cases, the state wields coercive authority against an individual facing potential loss of liberty, and constitutional rights may override truth-seeking objectives; in civil cases, \u201cpursuit of truth\u201d remains paramount. The Supreme Court\u2019s consideration of this case may further develop the jurisprudence on how Charter values are balanced against truth-seeking objectives outside the criminal context.<\/p>\n

Together, these cases will shape how police engage with private actors, how courts assess the fruits of those engagements, and how the constitutional protections against unreasonable search and seizure apply across different legal contexts. Practitioners in both criminal and civil litigation should watch these appeals closely.<\/p>\n","protected":false},"featured_media":0,"template":"","class_list":["post-57096","press_releases","type-press_releases","status-publish","hentry"],"acf":[],"_links":{"self":[{"href":"https:\/\/my.legal500.com\/developments\/wp-json\/wp\/v2\/press_releases\/57096","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/my.legal500.com\/developments\/wp-json\/wp\/v2\/press_releases"}],"about":[{"href":"https:\/\/my.legal500.com\/developments\/wp-json\/wp\/v2\/types\/press_releases"}],"wp:attachment":[{"href":"https:\/\/my.legal500.com\/developments\/wp-json\/wp\/v2\/media?parent=57096"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}