Judicial opposites on personal freedom

TheStar.com – comment – Judicial opposites on personal freedom
May 20, 2008. James Morton

On April 25, 2008, two of Canada’s highest courts issued decisions reflecting a profound difference in attitudes toward freedom and privacy.

The Supreme Court of Canada managed to stir up a hornet’s nest of criticism in two separate but related findings, both involving police use of sniffer dogs. While acknowledging that drugs were a serious social problem, the court nevertheless set aside the conviction of a man charged with possession of cocaine for the purpose of trafficking – he was also found with heroin – and also upheld the acquittal of a student charged with possession of pot for trafficking purposes.

The two rulings concluded that both a spot search in a Sarnia high school and another at a Calgary bus terminal were “unreasonably undertaken because there was no proper justification.” The judges ruled that “reasonable suspicion” of a drug crime must exist prior to such sniffer dog searches in schools, malls, sports stadiums and other public places.

The court spoke of the common law as “a law of liberty.” Without specific cause, a sniffer dog ought not to be used to hunt for drugs at bus stations or schools.

At the core of the two decisions was the court’s view that even while committing serious crimes, individuals were entitled to privacy, and that their privacy was entitled to legal protection. It was unconvinced by the argument, “if you’ve got nothing to hide, why are you troubled by a sniffer dog?”

On the same day, by chance, the Ontario Court of Appeal took quite a different stance on the right to privacy, upholding provisions of the Ontario Sex Offender Registry (“Christopher’s Law”) that require sex offenders to register their addresses with police and provide a current photograph. The Ontario court’s support for the provincial legislation was hardly surprising, yet its implicit rejection of the federal court’s “law of liberty” rhetoric stood out, especially given the timing.

The Ontario court noted the “Christopher’s Law” information was of the type “routinely required of individuals in today’s society for a host of regulatory and private needs that are the stuff of everyday life” – anyone with a driver’s licence has to provide the authorities with a current photograph and home address. The Ontario court also pointed out that while the registry allowed police to track sex offenders, it imposed no restrictions on “the freedom to make independent choices or to engage in a full range of lawful activities.”

The Ontario court and the Supreme Court posit two different views of personal freedom. Ontario says that freedom does not include secrecy for criminal activities – the citizen can do anything, but if that “anything” includes crime, they will be caught. The Supreme Court, by contrast, argues that freedom includes a right to keep even criminal acts secret – fear of the state is greater than fear of crime.

This debate is not new. In 1811, following a series of brutal highway murders in England, a bill was proposed to improve policing. Lord Dudley responded in the House of Lords that he “would rather half-a-dozen people’s throats were cut in Ratcliffe Highway every three or four years then to be subject to domiciliary visits and spies.” One suspects most Canadians these days take a rather different view of crime prevention.

Indeed, Canada is defined by the constitutional phrase “peace, order and good government” rather than the Americans’ “life, liberty and the pursuit of happiness.” We are a nation of ordered liberty, where freedom flourishes under the sovereign’s watchful eye. With all due respect to the Supreme Court, the Ontario Court of Appeal has a better sense of the nation’s pitch and substance.

James C. Morton is a litigation lawyer at Steinberg Morton Frymer in Toronto and adjunct professor and lecturer in Evidence and Advanced Evidence at Osgoode Hall Law School, York University. He is also the immediate past president of the Ontario Bar Association.

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