Conceptions of Privacy: A Comment on R. v. Kang-Brown and R. v. A.M.

Abstract

The Supreme Court of Canada's recent "sniffer dog" decisions expose two key flaws in its s. 8 jurisprudence. First, it has failed to develop a sophisticated understanding of the different interests that privacy is designed to protect. This led it to set out procedural rules that both over- and under-protect the privacy interests implicated by canine sniffs. By requiring reasonable suspicion before using dogs to detect drugs concealed in anonymous containers, the Court severely restricted the ability of police to investigate drug crime in a context where the risk and magnitude of informational harm is low. The Court's approach is under-protective, in contrast, in relation to non-anonymous sniffs. In the absence of ex ante checks on the discretion of front-line investigators, the reasonable suspicion standard provides insufficient protection against the harms of arbitrary selection and discriminatory profiling.The second flaw is the Court's failure to foster a more dynamic, co-operative, and modest relationship with Parliament in regulating investigative powers. In interpreting both the common law and s. 8, the Court could easily have taken a more minimalist approach. What harm would come from finding that anonymous sniffs attract no reasonable expectation of privacy? If people believed that such sniffs should be regulated, they could lobby their elected representatives to do so. Similarly, had the majority found no common law power to conduct non-anonymous sniffs without warrants or reasonable suspicion, Parliament would likely have been moved to act. In so doing, it may very well have crafted a more detailed, nuanced, and protective regulatory regime than the one imposed by the Court.In commenting on these cases, I set out a taxonomy of the concepts of privacy relevant to s. 8. The taxonomy's organizing principle is simple: privacy is described in relation to the discrete interests that it protects. Not surprisingly, this may not tell us precisely how those interests should be balanced against countervailing concerns, such as the detection and deterrence of crime, but it should help us to achieve a more optimal accommodation between them.