I’m probably late to the party in doing so (I’m commenting here after having stumbled upon this thread), but in any case, here goes…

Sure, we can rejoice that the court found that the drug sniffing operation, under the circumstances of the two cases, violated the Charter… but one must look beyond that to derive the full meaning and impact of these decisions.

The most important legal aspect of these decisions is that a majority of the bench (5 against 4) saw it fit to *lower* the standard to be applied in a s. 8 analysis (the section of the Charter that protects citizens against unreasonable searches and seizures) in circumstances analogous to that of the two cases: the majority wants to replace the “reasonable and probable grounds” standard with a more easily satisfied “reasonable suspicion” standard.

From the LeBel reasons (writing for the minority on this aspect):

“Nevertheless, in the leading cases on s. 8, the courts imposed significant constraints on intrusions on personal privacy by state agents. These constraints were found necessary because, as our Court found in Hunter v. Southam, “to determine the balance of competing interests after the search had been conducted” amounts to an “[ex] post facto analysis [that] would … be seriously at odds with the purpose of s. 8”. That purpose, our Court then emphasized, “requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place” (p. 160). Those constraints were — and in general still are, since this Court has never resiled from them — that there be a legal basis for the search or seizure in a statute or at common law, prior judicial authorization, and reasonable and probable cause. Departures from that constitutional framework had to be justified by the state. La Forest J. strongly stated the view that, as a matter of principle, common law police powers were narrow and their extension is better be left to Parliament (R. v. Wong, [1990] 3 S.C.R. 36, at pp. 56-57). My concern is that the approach adopted by my colleagues in this case will in practice jeopardize critical elements of the constitutional rights guaranteed by s. 8 and of that section’s underlying values.”

Morals of the story:

1. Always go to the source—read the decisions.
2. Media reporting on court decisions is usually pretty bad.

I would go further and say that it is an important component of ANY legitimate government. We give government extraordinary power in the course of enforcing the law to do things that otherwise would be against the law. Like locking people up.

Consider the difference between the police arresting someone and say, the Austrian man who imprisoned his own daughter for years. The difference lies in the fact that the former situation is (supposedly) governed by due process, most importantly habeas corpus. When the government does not follow its own rules, imprisonment cannot be characterized as arrest, but rightly should be called kidnapping, which it is. In absence of reasonable grounds, authorities who forcibly search someone are committing an assault, and should be charged with that offense.

I don’t understand.

“Though the earth, and all inferior creatures, be common to all…, yet every [one] has a property in his own person: this no body has any right to but himself.”

“AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to.”

Rights confer power; not vice versa. Witness Hamilton’s argument to Madison regarding the inclusion of the Ninth Amendment.

Analytic Judgment: “Rights not alienated must be RETAINED; necessarily.”

“one of the most essential sticks in the bundle of rights that are commonly characterized as [the right of self ownership is] the right to exclude others.” KAISER AETNA v. UNITED STATES, 444 U.S. 164 (1979)

So, I lost that stick in the bundle of the right of self ownership known as PRIVACY … how?

Regards,

Bob

You sound as if you’re planning this moment to prove ‘your’ point.

For guys like dunder it’s always an either-or proposition. It’s as though they cannot wrap their head around the idea of two goals both of which are critically important. I guess that is what happens when you are running around like the proverbial headless chicken. As far as his motives, i am not so sure its malicious. I tend to agree that most of what we ascribe to ill-will is just plain ignorance with a strident voice.

Supporting the rule of law is an important component of being a democracy. I know that sounds trite, but the right’s obsession with being afraid and trying to spread that fear and to use it to cripple our democracy are the action of one cowering fearfully in a corner and is precisely what the terrorists want. Your attempts to help them spread that fear and to change America is either an act of willful complicity with the terrorists to aid them in their efforts to destroy America from within or you’re an innocent dupe doing their bidding like a puppet on a string.

Please explain why you hate America, our Constitution and our form of goverance so much that you’re willing to aid abet those who would do us harm.

Minds will change……..fast. Even the Liberals in Canada don’t get it, do they?