Canada Puts Leash on Use of Drug-Sniffing Dogs

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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11 thoughts on “Canada Puts Leash on Use of Drug-Sniffing Dogs”

  1. Beautiful website i love it. always recommendSuggest to all my friends and they love it to. Huge Theme i love it. Always put in a good word to all my acquaintance and they love it to.

  2. I’m going to sound a somewhat dissenting note in stating that the two April 25 SCC decisions concerning drug sniffing are not the triumph of civil liberties over an increasingly “surveillantist” state that the media/people-commenting-on-the-cases-by-repeating-what-they-read-in-the-media are making it out to be.

    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.

  3. I, for one, would like to live in a world where the right to be free from unnecessary government intrusion into my life means something. I think most would acknowledge that what we have done, over time, is erode a valuable right to the point of near meaninglessness. Certainly, the right to be free from unreasonable government searches is not what we would call a “robust” right. Almost all of the cases that contributed to that result were (more or less) reasonable under the facts of the cases themselves. But the net effect was the proverbial slippery slope. We *can* fix this. We could put our faith in the political process and hope for better Justices; Justices whose skepticism of the efficacy of government extends to the police. Or we can seek to amend the Constitution; to give teeth back to that valuable right. We could do any number of things. I would submit that, no matter what the solution, we, the people, simply do not have the collective political will to actually do anything . It is a sad reality, but I think it is reality. We just don’t have any meaningful control over our government. Our interests are too varied. Our representatives too few. The forces that compel the result (“governmental interests”) are too strong.

  4. “Supporting the rule of law is an important component of being a democracy.” – R. Campbell

    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.

  5. J Turley: “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.”

    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?



  6. “Wait until an attack on Canada that kills several thousand followed by laments by the terroristst that they wish they coould have killed tens of thousands if not hundreds of thousands of Canadians.”

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

  7. Dundar is right. Shame on liberals here for bitching bitching bitching. That is what liberals do best; bitch and while pushing their nose up in the air with their thumb they make unsubstantiated claims that many would call LIES.

  8. rcampbell:

    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.

  9. Sorry, Dunder, but the right’s overuse of fear doesn’t work anymore. The Canadians aren’t abandonning their efforts toward combatting terrorism, they’re supporting their Constitution as it relates to personal searches.

    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.

  10. Wait until an attack on Canada that kills several thousand followed by laments by the terroristst that they wish they coould have killed tens of thousands if not hundreds of thousands of Canadians.

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

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