Algorithmic Policing Technologies in Canada

Abstract

Canadian law enforcement agencies are applying algorithmic technologies to identify individuals at the regional, provincial, and federal levels. These technologies connect templated facial images to an array of informational fragments that are collected from databases scattered between the public and private sectors. While that is the case, these surveillance technologies continue to be authorized under SCC jurisprudence, as opposed to legislation enacted by Parliament. Algorithmic technologies collate and analyze disparate information from public and private databases to identify patterns, which are then used to generate formulas to ‘predict’ future trends. Kate Robertson and colleagues explain that implementation of APTs by Canadian police services holds serious deleterious potential for the Charter rights of Canadians, with consequences that disproportionately affect people of colour. Be that as it may, the most malevolent consequence of applying APTs may be their application of generalized formulas to generate recommendations used to intercept individuals based on biased and inaccurate information. Although not authorized by statute, surveillance technologies continue to be permissible under common law authorities. Richard Jochelson explains the inappropriate nature of this approach, arguing in the alternative that the court’s traditional role calls for application of the Oakes test to determine if state surveillant practices fall within its constitutional limits. Considering APT’s serious implications for Charter protected rights, this paper calls on legislators to implement dedicated legislation to govern the use of surveillant technologies in law enforcement, with a particular focus on regulating the use of APTs. Failure to do so risks an unprecedented expansion of prejudicial policing practices, which may act to crystallize the existing biases in law enforcement practices into objective ‘scientific’ outputs that may hold serious deleterious potential for Canada’s most vulnerable populations.