The Court of Appeal for Ontario issued a judgement yesterday that highlights the potential for secondary use of collected data as a factor that weighs in favour of privacy protection.
The police swabbed the door handle of a car that was parked in public to test for cocaine residue. The Court found a reasonable expectation of privacy that rendered the search – which was done without judicial authorization – unlawful.
While holding that physical contact with the car was “a factor,” the Court de-emphasized the significance of physical contact with a chattel:
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.
Compare this to the United States Supreme Court finding in United States v Jones, in which a majority held that the trespass committed by police who install a GPS tracking device on a vehicle is the trigger to constitutional privacy protection.
The Court of Appeal for Ontario’s analysis rested more heavily on the potential for using the swab sample for purposes more intrusive than testing for cocaine residue:
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.
Search methodologies can be so targeted as to become defensible. The Supreme Court of Canada’s Tessling case, for example, suggests that capturing a heat signature emanating from a residence is unobtrusive because it reveals criminal activity in the house – an illegal grow op – and not much else. The majority in Tessling expressly said that a search should not be judged based on “theoretical” secondary uses. In this case, the potential for secondary use was real.
Hat tip to Fred Schumann of Stockwoods.
R. v. Wawrykiewycz, 2020 ONCA 269.
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