It appears that, while U.S. courts are jettisoning privacy rights and expanding the powers of the police in various areas, the Supreme Court of Canada is moving in the opposite direction: actually fighting to preserve privacy. In an important ruling, the Court held that police cannot use dogs to randomly sniff briefcases, book bags etc. They will have to show reasonable suspicion for such searches.
At issue was the bag of Gurmakh Kang-Brown, who the police targeted on a hunch in a school case. ‘The majority found a reasonable expectation of privacy, even in the scent of the bag.
Justice Ian Binnie wrote that “As with briefcases, purses and suitcases, backpacks are the repository of much that is personal – particularly for people who lead itinerant lifestyles during the day as in the case of students and travellers . . . No doubt, ordinary businessmen and businesswomen riding along on public transit or going up and down on elevators in office towers would be outraged at any suggestion that the contents of their briefcases could be randomly inspected by the police without reasonable suspicion of illegality. Because of their role in the lives of students, backpacks objectively command a measure of privacy.”
Wow, a court that actually cares about civil liberties. In the United States, the Supreme Court first abandoned any bright line rule with the adoption of the Terry standard and reasonable suspicion. While insisting that this would be a narrow exception, it quickly swallowed the rule. The Court then allowed greater and greater suspicionless searches in schools, airports etc. As these searches become more common, our reasonable expectation of privacy has shrunk. Unfortunately, that is the standard used to determine when the policy must get a warrant. Thus, as the reasonable expectations fall, the police can engage in more searches, which makes our reasonable expectations fall . . . and so on and so on in a race to the bottom.
Of course, this could be the beginning of new industry. Constitutional tourism where U.S. citizens can take the kids to Canada to see a country where privacy exists.
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