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Privacy - Criminal. R. v. El-Azrak
In R. v. El-Azrak (Ont CA, 2023) the Court of Appeal considered privacy impact of the RHPA regulatory scheme, here in the course of a criminal appeal challenge to the transfer of warrant-obtained information from the College of Pharmacists to the police:1. The Impact of the Regulatory Framework on the Appellant’s Privacy Interest
[65] In my view, while not determinative of the privacy issue at work in this case, the regulatory framework within which the s. 8 issue operates diminishes the appellant’s reasonable expectation of privacy. To understand why this is so, we have to first look to the statutory provisions at work.
a. Sections 36(1)(e), 36(1.2), 36(1.3) and 36(1.4) of the RHPA
[66] Section 36(1)(e) of the RHPA permitted, but did not require, the OCP to disclose the information about the appellant and her pharmacy in aid of the police investigation. The salient provisions follow:Confidentiality
36 (1) Every person employed, retained or appointed for the purposes of the administration of this Act, a health profession Act or the Drug and Pharmacies Regulation Act … shall keep confidential all information that comes to his or her knowledge in the course of his or her duties and shall not communicate any information to any other person except,
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(e) to a police officer to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result;
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Definition
(1.2) In clause (1) (e),
“law enforcement proceeding” means a proceeding in a court or tribunal that could result in a penalty or sanction being imposed. 1998, c. 18, Sched. G, s. 7 (2); 2007, c. 10, Sched. M, s. 7 (2).
Limitation
(1.3) No person or member described in subsection (1) shall disclose, under clause (1) (e), any information with respect to a person other than a member. 1998, c. 18, Sched. G, s. 7 (2); 2007, c. 10, Sched. M, s. 7 (3).
No requirement
(1.4) Nothing in clause (1) (e) shall require a person described in subsection (1) to disclose information to a police officer unless the information is required to be produced under a warrant. 1998, c. 18, Sched. G, s. 7 (2); 2007, c. 10, Sched. M, s. 7 (4). [Emphasis added.] [67] The term “member” is defined in s. 1(1) of the RHPA as a “member of a College” and the term “College” refers to “the College of a health profession or group of health professions established or continued under a health profession Act”. Each “health profession Act” is listed in Schedule 1 of the RHPA, including the Pharmacy Act, 1991, S.O. 1991, c. 36, which continues the OCP (s. 5). As a licenced pharmacist, the appellant was a “member” of the OCP.
[68] Distilled, I see the statute as operating in the following way:(1) subject to some statutorily defined exceptions, the OCP must keep confidential “all information” that comes into its knowledge in the course of its duties (s. 36(1));
(2) one such exception is where the information is given to the police in aid of an investigation with a view to, or which will likely lead to, a legal proceeding that could result in a penalty or sanction (ss. 36(1)(e), 36(1.2));
(3) where that exception applies, the OCP may provide information about members but not about non-members (ss. 1(1), 36(1.3)); and
(4) unless the information is required to be provided by “warrant”, the provision of that information is at the discretion of the OCP (s. 36(1.4)). b. The RHPA Reduces the Objective Reasonableness of the Privacy Interest at Work
[69] The appellant says that these sections enhance, not detract from, the appellant’s reasonable expectation of privacy because they create a presumption of confidentiality.
[70] Before responding directly to this argument, it is important to clarify the role a legislative scheme, such as the RHPA, plays in determining whether there is a reasonable expectation of privacy. In Gomboc, at para. 33, Deschamps J. for the plurality noted that, in the contractual context, contracts of adhesion require a cautious approach because a person may not know the terms governing their relationship with the holder of the information or that those terms could permit disclosure to the police. As Deschamps J. put it:In view of the multitudinous forms of information that are generated in customer relationships and given that consumer relationships are often governed by contracts of adhesion … there is every reason for proceeding with caution when deciding what independent constitutional effect disclosure clauses similar to those in the [operative terms] may have on determining a reasonable expectation of privacy. [71] Accordingly, rather than concluding that the legislative scheme, which permitted disclosure, was sufficient to erode the expectation of privacy, the plurality in Gomboc viewed this as but one factor among many constituting the totality of circumstances informing whether there existed an objectively reasonable expectation of privacy. The two dissenting judges, McLachlin C.J. and Fish J., joined the plurality in this observation, making for a majority on the point. As the dissenting judges put it, at para. 115: “The legislation is only one factor that is to be considered when determining whether an expectation of privacy is objectively reasonable and it may be insufficient to negate an expectation of privacy that is otherwise particularly compelling.”
[72] Therefore, I start by recognizing that the operation of the RHPA in this case is not dispositive of the claimed privacy interest. The respondent correctly acknowledges this fact. At the same time, it is in my view a strong factor for consideration.
[73] This is not a case involving a contract of adhesion, the nuances of which may not be known by a consumer who has been drawn into said contract. While the appellant could not have negotiated her way out of the disclosure provisions in the RHPA, as a professional pharmacist, she is to be taken to have known the rules and regulations governing the profession that she willingly entered.
[74] In this case, the legislation clearly works against any objectively reasonable privacy interest. The appellant was operating in a highly regulated environment. She knew the rules by which she was governed, including those related to disclosure. She knew that the OCP would be highly engaged, indeed, concerned with narcotic distribution, would be watching such distribution closely, and would be in a position to share information with the police provided that it only related to her.
[75] The appellant maintains that, even if the RHPA worked to decrease her reasonable expectation of privacy, the OCP needed to engage with the disclosure provisions through the exercise of “independent and informed judgment”. This language is borrowed from para. 107 of the Orlandis-Habsburgo decision. In that case, Doherty J.A. found that s. 32(g) of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 (the “MFIPPA”), which was then worded very similarly to the current s. 36(1)(e) of the RHPA, vested a discretion in the record holder to release information to the police. Section 32(g) of the MFIPPA at the time of Doherty J.A.’s decision read as follows:Where disclosure permitted
32 An institution shall not disclose personal information in its custody or under its control except,
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(g) if disclosure is to an institution or a law enforcement agency in Canada to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result. [76] Doherty J.A. held that s. 32(g) of the MFIPPA did not contemplate an ongoing sharing of information, but rather, to meet s. 8 compliance, it required an “independent and informed judgment” on the part of the record holder.
[77] That is precisely what happened in this case.
[78] The police made specific requests for information. The OCP considered and responded to those requests. The OCP, and Mr. Hui, in particular, exercised independent judgment in deciding what information to provide. For example, when Det. Ibbott asked to see the Drug Usage Report, Mr. Hui decided to redact the information provided. Mr. Hui also denied the police request for further information, namely, the unredacted Drug Usage Report, because, in his independent judgment, providing that information would breach s. 36 of the RHPA.
[79] While the appellant argues that there was an internal protocol in place at the OCP that required all police requests for information to be dealt with by a person who did not work at the investigative level, and Mr. Hui breached that protocol by responding to the request himself, the question is not whether internal protocols are breached, but whether independent and informed judgment is exercised. Regardless of whether an internal protocol was breached or not, and I should not be taken as suggesting it was, Mr. Hui’s actions demonstrate the exercise of independent and informed judgment. . R v Jarvis
In R v Jarvis (SCC, 2019) the court considered the issue of privacy from the criminal perspective on 'reasonable expectation of privacy' (also relevant are paras 28-53 on the specific voyeurism issue of the case):[54] The interpretation of a statutory provision may be informed by the broader legal context. Because Parliament chose to describe the element of the offence with which we are concerned using the expression “reasonable expectation of privacy”, one aspect of the broader legal context is of particular importance in the case at bar: the jurisprudence interpreting the right to be secure against unreasonable search and seizure guaranteed in s. 8 of the Charter, along with closely related jurisprudence.
[55] The concept of “reasonable expectation of privacy” has played a central role in the jurisprudence on s. 8 of the Charter since this Court’s earliest decisions interpreting that provision: see Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145. Since that time, the concept has also been employed by courts, including this Court, in delineating the scope of privacy rights outside the context of s. 8 of the Charter and has been used in other provisions of the Criminal Code: see Dagg, at paras. 71-75, per La Forest J., dissenting but not on this point; Srivastava v. Hindu Mission of Canada (Quebec) Inc., 2001 CanLII 27966 (QC CA), [2001] R.J.Q. 1111 (Que. C.A.), at paras. 68-69; Criminal Code, ss. 278.1 and 278.5.
[56] A legislature is presumed to have a mastery of existing law: Sullivan, at p. 205. When a legislature uses a common law term or concept in legislation, that term or concept is presumed to retain its common law meaning: Sullivan, at p. 543. Therefore, Parliament must be understood as having chosen the words “reasonable expectation of privacy” in s. 162(1) purposefully and with the intention that the existing jurisprudence on this concept would inform the content and meaning of these words in this section.
[57] Of course, the relevant differences between the context of s. 8 of the Charter and the context of the offence in s. 162(1) must be kept in mind. While one purpose of s. 162(1) of the Criminal Code is to protect individuals’ privacy interests from intrusions by other individuals, the purpose of s. 8 of the Charter is to protect individuals’ privacy interests from state intrusion: see Hunter v. Southam, at pp. 159-60; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 291. The s. 8 case law has developed in relation to this latter purpose. The “reasonable expectation of privacy” that is decisive in the s. 8 context is therefore an individual’s reasonable expectation of privacy vis-à-vis the state, or more specifically, vis-à-vis the instrumentality of the state that is said to have intruded on the individual’s privacy: see R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, at pp. 44-49; Plant, at pp. 291-93; R. v. Cole, 2012 SCC 53 (CanLII), [2012] 3 S.C.R. 34, at paras. 2-3 and 66-73; R. v. Marakah, 2017 SCC 59 (CanLII), [2017] 2 S.C.R. 608, at paras. 40-41.
[58] However, the s. 8 jurisprudence recognizes that the inquiry into whether an individual has a reasonable expectation of privacy vis-à-vis the state with respect to a certain subject matter may be informed, in part, by considering the individual’s privacy expectations vis-à-vis other individuals: see Duarte, at p. 47; R. v. Buhay, 2003 SCC 30 (CanLII), [2003] 1 S.C.R. 631, at paras. 19-24 and 33-34; R. v. Tessling, 2004 SCC 67 (CanLII), [2004] 3 S.C.R. 432, at paras. 32, 38-41 and 46-49. Thus, while the ultimate concern in the s. 8 context is whether there is a reasonable expectation of privacy vis-à-vis the state, the s. 8 case law contemplates that individuals may have reasonable expectations of privacy against other private individuals and that these expectations may be informed by some of the same circumstances that inform expectations of privacy in relation to state agents. This lends support to the view that the jurisprudence on s. 8 of the Charter may be useful in resolving the question raised in the case at bar.
[59] The s. 8 jurisprudence is instructive in interpreting s. 162(1) of the Criminal Code for another reason besides the fact that s. 162(1) uses the phrase “reasonable expectation of privacy”. The express terms of s. 162(1), as well as its legislative history, demonstrate that this provision is concerned with protecting individuals’ privacy interests in specific contexts. Because this Court and other courts in Canada have most frequently had occasion to consider the concept of privacy in the context of s. 8 of the Charter, the s. 8 case law represents a rich body of judicial thought on the meaning of privacy in our society. And far from being unmoored from our ordinary perceptions of when privacy can be expected, as Mr. Jarvis suggests, judgments about privacy expectations in the s. 8 context are informed by our fundamental shared ideals about privacy as well as our everyday experiences.
[60] I therefore turn now to a number of principles established in the jurisprudence on s. 8 of the Charter, and the broader privacy jurisprudence, that I consider relevant to interpreting the meaning of “reasonable expectation of privacy” in s. 162(1) of the Criminal Code. The first of these principles is that determining whether a person can reasonably expect privacy in a particular situation requires a contextual assessment that takes into account the totality of the circumstances: see Plant, at p. 293; R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at paras. 31 and 45; Schreiber v. Canada (Attorney General), 1998 CanLII 828 (SCC), [1998] 1 S.C.R. 841, at para. 19; Buhay, at para. 18; Tessling, at para. 19. As I have explained above, the idea that a variety of circumstances may reasonably inform a person’s expectation of privacy is consistent with a common sense understanding of the concept of privacy. The fact that this is a well-established principle in our jurisprudence lends further support to the view that Parliament intended it to apply in the s. 162(1) context.
[61] The second principle from the jurisprudence on s. 8 of the Charter and the broader privacy jurisprudence that is applicable in the s. 162(1) context is that privacy is not an “all-or-nothing” concept. In other words, simply because a person is in circumstances where she does not expect complete privacy does not mean that she waives all reasonable expectations of privacy: see Duarte; R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36; R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527; R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, at para. 108; Buhay, at para. 22; see also R. v. Spencer, 2014 SCC 43 (CanLII), [2014] 2 S.C.R. 212, at paras. 41-44; R. v. Quesnelle, 2014 SCC 46 (CanLII), [2014] 2 S.C.R. 390, at paras. 28-29 and 37-43; Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 (CanLII), [2013] 3 S.C.R. 733, at paras. 27 and 38 (“Alberta v. UFCW, Local 401”). Thus, the fact that a person knows she will be observed by others, including by strangers, does not in itself mean that she forfeits all reasonable expectations of privacy in relation to observation or visual recording.
[62] An example of this broader principle that is recognized in the jurisprudence is that the intrusion into our privacy that occurs when a person hears our words or observes us in passing is fundamentally different than the intrusion that occurs when the same person simultaneously makes a permanent recording of us and our activities: see Duarte, at p. 48; Wong, at pp. 44 and 48-53; see also Alberta v. UFCW, Local 401, at para. 27. A visual recording may be able to capture a level of detail that the human eye cannot. A visual recording can also capture this detail in a permanent form that can be accessed, edited, manipulated and studied by the person who created the recording and that can be shared with others: see R. v. Sandhu, 2018 ABQB 112 (CanLII), 404 C.R.R. (2d) 216, at para. 45; see also Alberta v. UFCW, Local 41, at para. 27. As this Court has recognized in the context of child pornography, where a photo or video represents sexual exploitation of a person, that person may be harmed for years following its creation by the knowledge that it “may still exist, and may at any moment be being watched and enjoyed by someone”: R. v. Sharpe, 2001 SCC 2 (CanLII), [2001] 1 S.C.R. 45, at para. 92, per McLachlin C.J.; see also paras. 164, 189-90 and 241, per L’Heureux-Dubé, Gonthier and Bastarache JJ. This is not to say that any person who appears in any public place retains a reasonable expectation that she will not be recorded by anyone for any reason: some types of visual recording in public places are to be expected. Rather, it is to emphasize that there is a fundamental difference between mere observation and recording and that this difference is part of the context that must be considered in analyzing reasonable expectations of privacy.
[63] Relatedly, the privacy jurisprudence recognizes the potential threat to privacy occasioned by new and evolving technologies more generally and the need to consider the capabilities of a technology in assessing whether reasonable expectations of privacy were breached by its use: see Wise, at pp. 534-35; Tessling, at para. 16; see also Alberta v. UFCW, Local 401, at paras. 20 and 27. As Voith J. observed in Rudiger, even where a permanent recording is not made, technology may allow a person to see or hear more acutely, thereby transforming what is “reasonably expected and intended to be a private setting” into a setting that is not: para. 98, see generally paras. 93-98. While evolving technologies may make it easier, as a matter of fact, for state agents or private individuals to glean, store and disseminate information about us, this does not necessarily mean that our reasonable expectations of privacy will correspondingly shrink.
[64] The next principle established by the jurisprudence on s. 8 of the Charter that is instructive in the case at bar is that the concept of privacy encompasses a number of related types of privacy interests. These include not only territorial privacy interests — “involving varying expectations of privacy in the places we occupy” (R. v. Gomboc, 2010 SCC 55 (CanLII), [2010] 3 S.C.R. 211, at para. 19) — but, significant to the case at bar, personal and informational privacy interests: Dyment, at p. 428, per La Forest J.; Tessling, at paras. 20-24.
[65] As this Court has recognized, our society places a high value on personal privacy — that is, privacy with respect to our bodies, including visual access to our bodies: see Tessling, at para. 21; R. v. M. (M.R.), 1998 CanLII 770 (SCC), [1998] 3 S.C.R. 393, at para. 32; R. v. Golden, 2001 SCC 83 (CanLII), [2001] 3 S.C.R. 679, at paras. 83, 89-90, 98-99 and 106. While all aspects of privacy — both from the state and from other individuals — serve to foster the values of dignity, integrity and autonomy in our society, the connection between personal privacy and human dignity is especially palpable: see Dyment, at pp. 427-29, per La Forest J.
[66] In considering the concept of informational privacy, this Court has accepted that individuals have a valid claim “‘to determine for themselves when, how, and to what extent information about them is communicated to others’”: Tessling, at para. 23, quoting A. F. Westin, Privacy and Freedom (1970), at p. 7; see also Dyment, at p. 429, per La Forest J.; Alberta v. UFCW, Local 401, at para. 21. The safeguarding of information about oneself, which is also closely tied to the dignity and integrity of the individual, is of paramount importance in modern society: Dyment, at p. 429. When a court is considering whether there is a reasonable expectation of privacy in information, the nature and quality of the information at issue are relevant: see Plant, at p. 293; Tessling, at paras. 59-62; R. v. Gomboc, at paras. 27-40.
[67] Section 162(1)(a) implicates territorial privacy, as it is concerned with protecting privacy in particular places. More fundamentally, however, s. 162(1) as a whole is concerned with protecting personal and informational privacy by prohibiting the observation and visual recording of persons. The jurisprudence on s. 8 of the Charter reminds us that we should be attentive to the ways in which these privacy interests may be affected, even where territorial privacy is not necessarily engaged. It also recognizes the particularly pernicious threat to individual dignity and autonomy that may be posed by violations of these types of privacy expectations. Bearing in mind the high value that our society places on personal — and particularly bodily and sexual — privacy and informational privacy may also be useful in determining whether observation or recording breaches reasonable expectations of privacy in a particular case.
[68] This leads me to an important point about the reasonable expectation of privacy inquiry in the contexts of s. 8 the Charter and s. 162(1) of the Criminal Code. The s. 8 jurisprudence makes it clear that “reasonable expectation of privacy” is a normative rather than a descriptive standard: see Tessling, at para. 42. This Court has also found that the question of whether a person claiming the protection of s. 8 had such an expectation cannot be answered by falling back on a “risk analysis” — that is, by reducing the inquiry to whether the person put themselves at risk of the intrusion they experienced: Duarte, at pp. 47-48; Wong, at p. 45. Both of these propositions apply in the s. 162(1) context. Whether a person reasonably expects privacy is necessarily a normative question that is to be answered in light of the norms of conduct in our society. And whether a person can reasonably expect not to be the subject of a particular type of observation or recording cannot be determined simply on the basis of whether there was a risk that the person would be observed or recorded. The development of new recording technology, and its increasing availability on the retail market, may mean that individuals come to fear that they are being recorded by hidden cameras in situations where such recording was previously impossible; however, it does not follow that individuals thereby waive expectations of privacy in relation to such recording or that retaining such an expectation becomes unreasonable: see Tessling, at para. 42. Indeed, to accept such an approach would make the “reasonable expectation of privacy” a “meaningless standard” and would undermine Parliament’s very purpose in enacting s. 162(1): see Wong, at p. 45.
[69] That being said, determining whether a reasonable expectation of privacy arises in a particular set of circumstances does not involve an ad hoc balancing of the value of the accused’s interest in observation or recording against the value of the observed or recorded person’s interest in being left alone. Accordingly, I respectfully disagree with the approach taken by the dissenting judge in the Court of Appeal. The question he posed — whether “high school students expect that their personal and sexual integrity will be protected while they are at school” — is not the appropriate question: para. 131.
[70] Parliament has already weighed society’s interests in allowing individuals to observe and record others and in protecting individuals from surreptitious observation and recording. In the result, Parliament has enacted s. 162(1), which prohibits surreptitious observation and recording that breaches reasonable expectations of privacy in the three situations described in paras. (a) through (c) of that provision. It is inherent in the public good defence in s. 162(6) that the value of observation or recording to society might, in a particular case, outweigh the value of individual privacy interests, even where the observation or recording would otherwise ground a conviction under s. 162(1) of the Criminal Code. Thus, the only question to be asked in determining whether a person who is observed or recorded was in circumstances that give rise to a reasonable expectation of privacy is whether that person was in circumstances in which she would reasonably have expected not to be the subject of the observation or recording at issue. . R. v. Wawrykiewycz
In R. v. Wawrykiewycz (Ont CA, 2020) the Court of Appeal's decision illustrates the difficulty that the criminal courts have with assessing the normative issue of privacy. The case is not important for any specific legal points that it makes, only for this illustration:[36] Whether the appellant had a reasonable expectation of privacy in the material collected from the door handle of a car he parked in public is a normative, value-laden inquiry. The essential question is what degree of state intrusion into personal, territorial, and informational privacy can be tolerated without prior judicial authorization. As observed in R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 14, “[p]rivacy analysis is laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy.” Elsewhere, the Supreme Court has observed, “At the same time, social and economic life creates competing demands. The community wants privacy but it also insists on protection. Safety, security and the suppression of crime are legitimate countervailing concerns.”: see Tessling, at para. 17.
[37] The degree to which police make physical contact with property is one factor to be considered in the totality of the circumstances. In Patrick there was an element of trespass by police, as they had reached over a property line to seize bags of garbage. Binnie J. noted at para. 45, “that while territorial privacy is implicated in this case, the physical intrusion by the police was relatively peripheral, and viewed in context, it is better considered as part of the totality of circumstances in a claim that is preferably framed in terms of informational privacy.” (emphasis in original).
[38] In A.M., the fact that sniffer dog searches do not require physical contact with targeted property was relevant but not determinative: see para. 81. In some circumstances the degree of physical intrusion constituted by the search may be important, such as when police search through the contents of a purse or backpack. In others, the degree of physical intrusion may have little relation to resulting invasions of privacy.
[39] Too narrow a focus on whether there was a trespass to a chattel, and the extent of interference with use of that chattel, could obscure the privacy interests at stake, as here, where the trial judge focused on the fact that the taking of the swabs had no impact on the appellant’s use of the car and was not known to him. She emphasized that the taking of the samples was itself nonintrusive, did not intrude into private places or embarrass the appellant, and did not affect his dignity, integrity, or autonomy.
[40] Here the appellant had some expectation of privacy in the vehicle. Although the vehicle was owned by his father, he was using it and had the ability to regulate access to it, and there is no suggestion he abandoned his privacy interest. By parking the vehicle in a public lot, he would reasonably expect that others, including police, would make observations of the car. Police could legitimately observe physical damage to the car, or evidence on its exterior such as blood spatter, without prior judicial authorization.
[41] I would not conclude that any physical contact by the police with the car is necessarily a violation of a reasonable expectation of privacy. An officer might, for example, place a hand on the hood of a car to determine whether it is warm, that is, to determine whether the vehicle has recently been driven. This evanescent contact is not far beyond the casual contact patrons of a parking lot might incidentally have with other vehicles.
[42] However, I would hold that taking samples of residue left by a suspect’s hands on the handles of a vehicle, and subjecting those samples to chemical analysis, is an intrusion for which a warrant should be required. This investigative technique can reveal “intimate details of the lifestyle and personal choices of the individual.”: see R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 293. These swabs presumably revealed whether the appellant had handled cocaine. I also agree with the observations in Wong, at para. 27, that privacy concerns are heightened because the swabs may also provide DNA samples for analysis by police, even if that is not why they were initially collected, or what they were used for. Patrick concerned police searches of a suspect’s curb-side garbage. Though the police were searching for evidence of drug offences, the potential for collection of DNA was also relevant to the privacy analysis: see para. 30. The court also expressed scepticism of the notion that privacy concerns are diminished because the search was targeted at contraband: see Patrick, at para. 32; see also A.M., at para. 73.
[43] This is unlike the emanations of heat released into the public sphere in Tessling. By themselves, such heat emanations revealed little about the occupants of the home and concerns mainly centered on the technology’s theoretical capacity to invade privacy. In the present case, while the swabbing was only carried out for the limited purpose of testing for the presence of cocaine, the technological capacity exists to subject swabs to other privacy-compromising analyses. In contrast, in Kang-Brown the odors were released into the public sphere and detected by a sniffer dog; no physical contact with the backpack was required, no samples were taken, and a sniffer dog generally cannot disclose non-targeted private information. As the Supreme Court observed in A.M., at paras. 74, 83:[T]he fact that the “sniff” only communicates the presence of contraband and does not disclose the nature or existence of other personal belongings is not without significance.
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[T]he dog’s communication capacity is limited to a positive alert or a failure to react at all. Unlike a wiretap or a physical search, the police do not obtain a lot of information about a suspect that is not relevant to their specific drug inquiry. While the suspect has a privacy interest in the place where the drugs are concealed, the fact that the sniff will disclose nothing except the presence of illegal drugs in that private place is a factor weighing in favour of moving the balance point to the reasonable suspicion standard. [44] Here, though the vehicle was in public view, any residue left by the appellant’s hands was not observable to a passerby and was in this sense private. As the trial judge concluded, the appellant had an objective and subjective reasonable expectation of privacy in the car, and more particularly, in the residue left by his hands on the handles of the car he was using.
[45] Given the privacy interests in the material transmitted from the appellant’s hands to the door handles, and given the degree of intrusion, sampling, and analysis, this is not a search for which reasonable suspicion could substitute for prior judicial authorization, as was the case in Kang-Brown. This was a warrantless search which was presumptively unreasonable: see R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145. The presumptive requirement for prior judicial authorization remains. The onus rests on the Crown to demonstrate that the warrantless search was reasonable. Here there was no evidence about the accuracy or functioning of the ion scan equipment. A review of the jurisprudence suggests that its use has largely been confined to border searches. This was not a case of bodily residue or DNA left on abandoned personal property, or on public property, or on someone else’s property. There is no suggestion that exigent circumstances existed to justify the warrantless search.
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