International Law

Big Brother, we love you

Fall-out from the Supreme Court’s drug-sniffer dog cases?

OTTAWA?The Harper government is miffed at two Supreme Court judgments restricting sniffer-dog searches in schools and other public places, and it’s hinting it will take action to offset them.

Public Safety Minister Stockwell Day used the Ottawa airport and a drug-sniffing dog Wednesday to drive home his distaste for last week’s 6-3 decisions. Both judgments restrict random searches in high schools, bus depots and other public spaces.

“I don’t love the ruling but we respect the rule of law,” he said after inviting reporters to watch a chocolate Lab named Shelly find a bag of pot in a duffle bag.

“We will follow it, absolutely. . . We also have to see how we can continue to best protect . . . kids in school and citizens in general.”

Ah, yes. Just keep replaying the classics: Think of the children. The War on Terror.

Day’s choice of locale Wednesday was curious because the high-court judgments specifically exclude airports and border points where federal laws apply.

He wanted to stress that border officials, police and other authorities are still using sniffer dogs at airports, ports of entry and in prisons. That’s just in case “people are thinking that they might be able to more easily now transport drugs or contraband or explosives into airports, places of transit or . . . into our corrections facilities,” he warned.

…

Day said he’s concerned the ruling could lead to challenges of dog searches at airports even though they’re already allowed under federal law.

Not likely, said University of Ottawa law professor David Paciocco. He questioned Day’s tacit comparison of anti-terror measures at airports and border crossings with the prospect of high-school kids having to submit to spot police searches.

“When individuals go to a border point or to an airport, they have to understand that their possessions will be searched. There’s almost a social contract, the expectation is so high.

“If your expectation of privacy is lowered, it’s because of the importance of governments being able to control their borders. . . There’s a difference between using sniffer dogs at airports for security purposes and bringing sniffer dogs into high schools where they can randomly check out lockers for narcotics.”

Lawyer Jonathan Lisus, who represented the Canadian Civil Liberties Association on the Supreme Court case, said there was no evidence pointing to an all-out drug crisis in schools or that random searches worked.

“There was none of that evidence that this was in response to some kind of over-riding, pressing need and it had produced a much safer environment or community. There’s a lot of rhetoric around all this.”

Lisus also sees no legal gap that needs to be filled.

“Obviously Parliament can pass laws . . . but those laws have to adhere to the constitution.

“We’ve got enshrined constitutional rights that cannot just be taken away by the government of the day.”

Well, all I can say is that if those enshrined constitutional rights include a right to privacy we aren’t going to have them for long. I say this not in response to Stockwell Day’s (and Justice Minister Rob Nicholson’s) veiled threats, but rather to the shift in society’s attitudes toward the value of privacy. There’s a good article in the May 2008 Walrus by Hal Niedzviecki on this, though it’s something other people have been writing about for some time now. As Niedzviecki puts it (emphasis added):

The presence of surveillance in all aspects of everyday life has had a strange effect on the consciousness of Canadians and citizens throughout the Western world. Over the past twenty years, ubiquity has become acceptance, and acceptance has become adoption and adaptation. We’ve adopted the logic of surveillance and adapted its goals and methodologies to everyday life. We’ve done so largely because seemingly disparate phenomena such as police surveillance, Air Miles, Facebook, blogs, GPS-enabled cellphones, the War on Terror, and reality TV all put out the same message: surveillance is good for you; only the guilty worry about their privacy.

I find myself out of step with the larger culture in a lot of ways, but perhaps no more so than here. I don’t buy the message that only the guilty have concerns about privacy, nor do I think surveillance is an unalloyed good.

I do think the time frame Niedzviecki mentions is accurate. Twenty years ago I think the majority of citizens would have been appalled at the notion of such things as global population DNA databases, for example. Today they are widely seen as a law-enforcement panacea (there’s a debate over their adoption in England now, a debate that wouldn’t have taken place, at least seriously, in the 1980s).

Where did such trust in handing over personal information to large corporations and the government come from? Where such submission to authority? For information is power, and (willingly) giving up personal information is giving up power. I can see the argument for convenience, but only in trivial matters. But even then I don’t think it’s being paranoid to have some concerns when buying things online. As for the Supreme Court decisions, all that was said is that the police need to have reasonable and probable grounds for such searches. I wouldn’t have thought that was too much to ask. And the alternative, that surveillance can be conducted all the time on everyone, especially considering the advances being made in so-called “passive” surveillance technologies, is truly alarming.

How much power do we want corporations and the state to have? Where are the limits?

Full post as published by Criminal Review on May 01, 2008 (boomark / email).