Across the Rubicon and into the Apennines: Privacy and Common Law Police Powers after A.M. and Kang-Brown

Abstract

In A.M and Kang Brown the Supreme Court of Canada both answered some of the questions surrounding whether odours emanating from individuals' belongings are constitutionally protected from police sniffer dogs and raised other questions about the future of privacy and common law police powers in Canada. This article examines the judgments in A.M. and Kang Brown, with an emphasis on the lines of reasoning relating to two issues: the reasonable expectation of privacy and the standard underlying common law search powers. The author suggests that these Supreme Court of Canada decisions seem to give with one hand while taking away with the other; while offering enhanced opportunities for protecting reasonable expectations of privacy by insisting that the inquiry be placed in context, the decisions also appear to expand common law police powers outside of matters involving threats to public safety.

Keywords: A.M., Kang Brown, Supreme Court of Canada, individual belongings, constitutional, police, sniffer dogs, privacy, common law, police powers, search powers, public safety, threats