2 June 2026 • 9 minute read
When private actors become state agents: Two cases to watch at the Supreme Court of Canada
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.
In R. v. Pham, the British Columbia Court of Appeal ordered a new trial after finding the trial judge erred in assessing whether courier company employees became “state agents” when they set aside packages at police request. If parties are found to have been “state agents”, their actions become subject to Charter scrutiny since they essentially acted as an extension of the government. In McCormack v. Evans, 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.
Both cases involve police investigative conduct that blurred proper boundaries, enlisting private actors in Pham and misrepresenting sources in McCormack, 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.
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 McCormack, the Court emphasized that civil trials are governed by different principles, the “pursuit of truth” is paramount, and Charter-based exclusion operates differently where there is no jeopardy or potential loss of liberty.
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.
R. v. Pham, 2025 BCCA 324
In May 2019, CBSA officers intercepted two packages containing methamphetamine at the Vancouver International Airport, one bearing the appellant’s 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.
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 “state agents.”
Analysis of the British Columbia Court of Appeal
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 “would have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents.” Rather than applying this test, the trial judge asked whether there was anything wrong generally with police “enlisting the assistance of members of the public in the investigation, detection and prevention of crime.” The Court held this was an error of law reviewable on a standard of correctness.
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’s involvement, the packages would have remained in the mail stream. The trial judge’s finding that the employees “were simply going about their normal business” failed to account for this evidence. The Court allowed the appeals and ordered a new trial.
On May 21, 2026, the Supreme Court of Canada granted the Crown leave to appeal. The Supreme Court’s 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.
McCormack v. Evans, 2025 ONCA 767
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’s 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.
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 “inevitable” 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.
Analysis of the Ontario Court of Appeal
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’s opinion that a s. 8 breach was “inevitable” was a lawyer’s 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 “the analysis of whether or not to exclude evidence for a Charter breach is entirely different in the civil context than in the criminal context.” 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 “a departure from factual reality, common sense, and the pursuit of justice.”
On reasonable and probable grounds, the Court upheld the trial judge’s finding that Evans’ deception did not negate a genuine belief in the appellant’s 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’s own incriminating utterances captured by the wiretap. The Crown’s withdrawal of charges was based on the potential for Charter exclusion, not the unreliability of the investigators’ grounds.
The Court dismissed the appellant’s 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’ misdescription was “improper,” the appellant had “not shown that it was calculated to cause harm.” The Charter damages claim failed because the appellant did not establish that the wiretap authorization was invalid.
On May 21, 2026, the Supreme Court of Canada granted leave to appeal this decision. The grounds for appeal remain to be seen.
Looking ahead: Why these cases matter
The simultaneous grants of leave in Pham and McCormack signal the Supreme Court’s 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.
In Pham, 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’s decision reaffirmed the Buhay framework, asking whether the private actor’s conduct would have occurred “in the form and manner in which it did” but for police intervention, while highlighting how easily that test can be misapplied. The Supreme Court’s decision may clarify the threshold at which police requests for assistance transform cooperative citizens into agents of the state.
In McCormack, 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, “pursuit of truth” remains paramount. The Supreme Court’s consideration of this case may further develop the jurisprudence on how Charter values are balanced against truth-seeking objectives outside the criminal context.
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.
In R. v. Pham, the British Columbia Court of Appeal ordered a new trial after finding the trial judge erred in assessing whether courier company employees became “state agents” when they set aside packages at police request. If parties are found to have been “state agents”, their actions become subject to Charter scrutiny since they essentially acted as an extension of the government. In McCormack v. Evans, 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.
Both cases involve police investigative conduct that blurred proper boundaries, enlisting private actors in Pham and misrepresenting sources in McCormack, 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.
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 McCormack, the Court emphasized that civil trials are governed by different principles, the “pursuit of truth” is paramount, and Charter-based exclusion operates differently where there is no jeopardy or potential loss of liberty.
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.
R. v. Pham, 2025 BCCA 324
In May 2019, CBSA officers intercepted two packages containing methamphetamine at the Vancouver International Airport, one bearing the appellant’s 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.
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 “state agents.”
Analysis of the British Columbia Court of Appeal
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 “would have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents.” Rather than applying this test, the trial judge asked whether there was anything wrong generally with police “enlisting the assistance of members of the public in the investigation, detection and prevention of crime.” The Court held this was an error of law reviewable on a standard of correctness.
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’s involvement, the packages would have remained in the mail stream. The trial judge’s finding that the employees “were simply going about their normal business” failed to account for this evidence. The Court allowed the appeals and ordered a new trial.
On May 21, 2026, the Supreme Court of Canada granted the Crown leave to appeal. The Supreme Court’s 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.
McCormack v. Evans, 2025 ONCA 767
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’s 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.
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 “inevitable” 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.
Analysis of the Ontario Court of Appeal
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’s opinion that a s. 8 breach was “inevitable” was a lawyer’s 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 “the analysis of whether or not to exclude evidence for a Charter breach is entirely different in the civil context than in the criminal context.” 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 “a departure from factual reality, common sense, and the pursuit of justice.”
On reasonable and probable grounds, the Court upheld the trial judge’s finding that Evans’ deception did not negate a genuine belief in the appellant’s 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’s own incriminating utterances captured by the wiretap. The Crown’s withdrawal of charges was based on the potential for Charter exclusion, not the unreliability of the investigators’ grounds.
The Court dismissed the appellant’s 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’ misdescription was “improper,” the appellant had “not shown that it was calculated to cause harm.” The Charter damages claim failed because the appellant did not establish that the wiretap authorization was invalid.
On May 21, 2026, the Supreme Court of Canada granted leave to appeal this decision. The grounds for appeal remain to be seen.
Looking ahead: Why these cases matter
The simultaneous grants of leave in Pham and McCormack signal the Supreme Court’s 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.
In Pham, 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’s decision reaffirmed the Buhay framework, asking whether the private actor’s conduct would have occurred “in the form and manner in which it did” but for police intervention, while highlighting how easily that test can be misapplied. The Supreme Court’s decision may clarify the threshold at which police requests for assistance transform cooperative citizens into agents of the state.
In McCormack, 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, “pursuit of truth” remains paramount. The Supreme Court’s consideration of this case may further develop the jurisprudence on how Charter values are balanced against truth-seeking objectives outside the criminal context.
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.