ColbyCosh.com

The last two links both go to the hypnosis article, Colby.

Not anymore!

X-ray machines penetrate the backpack. The fumes are in the public airspace. Big difference. Same goes for heat irradiating from a grow-op house.

The argument that the dog's nose is more sensitive the a humans and thus is an unjust tool of detection seems to open up a whole list of future challenges i.e. are magnifying glasses illegal in detecting similarities in fingerprints? are DNA tests illegal? etc. etc.

My question is - Does this ruling outlaw the use of sniffer dogs/machines to detect bomb-materials at subway stations?

The SC has a few wing-nuts who are prepared to err, fatally perhaps, on the side of civil liberties regardless of the consequences.

Binnie : "The subject matter of the sniff is not public air space. It is the concealed contents of the backpack."

As Gord points out, that is factually incorrect and I am pretty surprised that Binnie, who may be the sharpest mind on the Court, would make such an error. The subject matter of the search consequent on the sniff (and alert) is indeed the concealed contents of the backpack, but the sniff is only examining the airspace. If one wants to say that sniff searches are a no-go, it seems to me one has to come up with another line of reasoning.

Nevertheless, if we're all going to be subject to random searches wherever we happen to be, on a dog's say-so, it does seem reasonable to warn us that that will be the case.

My question is - Does this ruling outlaw the use of sniffer dogs/machines to detect bomb-materials at subway stations?

No. However, the legality of such a search would likely come into question if someone is caught using such a method. Of course, if a zone of expected lowered privacy were established (by warning patrons that regular searches are conducted, and following through with regular searches) then on this ruling, no problem.

The SC has a few wing-nuts who are prepared to err, fatally perhaps, on the side of civil liberties regardless of the consequences.

It is not the Supreme Court's job, in reviewing a search under s.8, to take into account any consequences. And I would certainly not expect anyone to give up their s.8 right just because someone else is mortally afraid of the subway.

I tend to agree with the LeBel group, incidentally, that Parliament are frustratingly absent here once again. If we had some good, solid laws explaining how the cops were to use (or not use) sniffer dogs, it would help immensely to clear up the issues. There is no doubt that s. 8 can be made subject to some pretty damn robust limitations under s. 1 - especially where stuff like explosives is concerned. Hopefully Parliament will get the idea, and legislate.

Devil's Advocate: ...At which point those same four justices, or their spiritual heirs, will suddenly start awake and run directly at whatever legislation gets passed with a full set of those really expensive Japanese ceramic chefs' knives. Isn't it fair to ask who they're kidding? This is the 1922 Supreme Court suddenly?

And why does interpreting a constitutional provision that revolves around the word "reasonable" exclude a consideration of consequences? (Possible partial answer: because the SCC is generally forced to rule on pretty fact-impoverished trial matter, as both cases here are.)

X-ray machines penetrate the backpack. The fumes are in the public airspace. Big difference. Same goes for heat irradiating from a grow-op house.

The argument that the dog's nose is more sensitive the a humans and thus is an unjust tool of detection seems to open up a whole list of future challenges i.e. are magnifying glasses illegal in detecting similarities in fingerprints? are DNA tests illegal? etc. etc.

The SCOTUS attacked this issue in the 2001 case Kyllo v. United States. Interesting lineup, Scalia writing for a 5-4 Court, joined by Thomas, Souter, Ginsburg, and Breyer, argued that it was impermissible without a warrant because of how much information about the private interior of the home it revealed without a warrant. (Note: home, not other situations where expectations of privacy may be lessened.) Justice Scalia gave strong weight to the device being somewhat rare, that people could not be expected to know that they should guard their heat emissions (in the same way that they could close their blinds or erect a fence to prevent police from looking in without a warrant). He noted that, for example, phone wires transmit the information about what number was dialed outside the house, yet the Supreme Court has been pretty clear that a warrant is needed to install a pen register for law enforcement use.

Dissent by Stevens, joined by Rehnquist, Kennedy, and O'Connor basically along the lines of "heat leaves the house, so we're done, plus basing on reasonable expectations leaves open the possibility of things changing as technology matures."

...At which point those same four justices, or their spiritual heirs, will suddenly start awake and run directly at whatever legislation gets passed with a full set of those really expensive Japanese ceramic chefs' knives. Isn't it fair to ask who they're kidding

Perfectly fair question. If you're talking about marijuana, obviously, it's going to be pretty fucking hard to come up with an explanation of how the section 8 limitations are justified by section 1. If you're talking about heroin, or much much more if you're talking about explosives sniffer dogs, it's pretty damn easy to see how a section 1 justification gets built.

But do I think that a justice like Rosalie Abella is going to think that training a dog to sniff for marijuana and then deploying it at random in public places, is going to be justified no matter how carefully crafted the law is saying that they can do it? Never in hell, of course not. That being said, if Parliament turns its feeble collective mind towards legislation outlining the permissible and impermissible use of detection dogs, even it is likely to realize that probably can't get away (Constitutionally) with deploying them in that way. Similarly, we don't (I am given to understand) train drug detection dogs to sniff for alcohol anymore, even though there are many cases where alcohol is contraband.

On the other hand, if we allow cadaver detection dogs to be deployed in places of interest during criminal investigations, or explosives detection dogs to be deployed on public transit systems, in schools or in other public places, I really can't see at all how the Supreme Court (even constituted as it is) would find such a law not to be saved by section 1.

And why does interpreting a constitutional provision that revolves around the word "reasonable" exclude a consideration of consequences? (Possible partial answer: because the SCC is generally forced to rule on pretty fact-impoverished trial matter, as both cases here are.)

Ya, I was way too glib on that, sorry. Posting without thinking. To a degree, consequences have to matter, and that's where the drugs vs. explosives sort of distinction is important. But the key to the reasonability of a search under s.8 is that one has reasons ("whys") to search someone - i.e. the "reason" of a search or a seizure under the law refers (or has always generally been taken to refer) to the reasonableness of the cause for search. It's perhaps legitimate to say that the need for the robustness of the "whys" declines as the potential consequences get bigger and more damaging... I haven't really thought about that.

Dissent by Stevens, joined by Rehnquist, Kennedy, and O'Connor basically along the lines of "heat leaves the house, so we're done, plus basing on reasonable expectations leaves open the possibility of things changing as technology matures."

Which is Tessling, pretty much. Which means the U.S. has tighter, more liberal restraints on infrared surveillance than Canada—because they have a Scalia and we don't. Don't anybody tell Dahlia Lithwick, she might get the vapours.

...that people could not be expected to know that they should guard their heat emissions (in the same way that they could close their blinds or erect a fence to prevent police from looking in without a warrant).

Like how people before fingerprint technology used to commit crimes without wearing gloves...

I agree with Rehnquist and co. on this. It's akin to claiming innocence because you didn't know what the law was.

Phone wires are a part of the telcos property - they are not public domain - a warrant should be required. Wireless router transmissions from one in-home computer to another, if the transmissions aren't fire-walled/encrypted, should be fair-game without a warrant. Getting permission via a warrant to decrypt the transmission I'm not so sure about.

Thank you for your editorial on the MacDougal fiasco. There can't be too much exposure of this stuff; many of our fellow citizens still have no idea how bad things really are inside the management of the "corrections" system.

If you ever address the subject again in the broadsheet, you might mention that after the young MacDougal first escaped prison in Saskatchewan and headed for Texas, his first victims were men lured out of gay bars that he robbed; as you did note, one of them was left tied up in a field and died of exposure. After a Texas court sentenced McDougal to 35 years, he served ten years in Texas jails and was then transferred (in 1978) to Canadian jail under a prisoner exchange program. He was out within a year and immediately committed the 1979 rape that you wrote about.

One possible alternative to the cumbersome "dangerous offender" designation" would be to emulate the Washington State "three strikes" law, passed by referendum in the 1990s. Upon a third felony conviction, a criminal receives an additional 10 years without parole (on top of the sentence for the third felony). I realize Canadian law doesn't use the term "felony", but a list of serious crimes could be drawn up.

Like how people before fingerprint technology used to commit crimes without wearing gloves...

Yes, but I think that there's a difference because no one ever expected that police wouldn't look at clues at the scene of a crime, did they?

Reasonable expectation of privacy in one's own home is something quite different, I think.

Wireless router transmissions from one in-home computer to another, if the transmissions aren't fire-walled/encrypted, should be fair-game without a warrant. Getting permission via a warrant to decrypt the transmission I'm not so sure about.

What about, relatedly, encrypted but with obvious security holes that can be broken easily? "Oh, everyone knows--or should-- that WEP is deprecated and provides nearly no security? What, your router presented it as the default "security" option? Too bad." What about if it's really obviously ineffective, the equivalent of rot-13? Would that be the difference between a warrant and not? That gets into the whole DCMA issue about "effective" security or encryption.

Those very edge cases are part of the reason why the standard of expected privacy shifts with technology.

(And of course there's ridiculous thought experiments, like the "What about the Philip K. Dick's Minority Report scenario. Sure, you only thought about committing the crime in the safety of your house, but you should've known that it would affect the possibility measure on space-time outside your house.)