No privacy if bags checked, court told

OTTAWA — Canadians forfeit their right to privacy when they check their baggage for a flight, a lawyer argued Tuesday as a Halifax man’s drug charges were debated before the Supreme Court of Canada.

Issues of racial profiling, privacy rights and even whether drug-sniffing dogs should be used in Canada were all raised as lawyers debated whether Mandeep Singh Chehil should face a new trial.

In 2005, Chehil walked into Vancouver International Airport and slapped down $700 in cash to catch the red-eye flight to Halifax leaving in just 45 minutes. He checked one bag, a suitcase full of cocaine.

Halifax RCMP, examining the flight manifest, had seen this type of thing before. These last-minute, one-way flights across the country often involve drugs heading east and money heading west.

Once the flight landed, an RCMP sniffer dog named Boris smelled the bag and signalled that it contained narcotics. The suitcase was put on the baggage carousel and Chehil was arrested once he picked it up.

But a Nova Scotia judge decided Chehil’s charter rights had been violated and acquitted him. That decision was successfully appealed and a new trial was ordered. That ruling was also appealed.

Chehil’s lawyer, Stanley MacDonald of Halifax law firm Garson MacDonald, told Supreme Court judges that police must have some evidence of a crime before they can conduct a search.

He said police did not prove they had grounds for reasonable suspicion.

“There is nothing aside from the police say it’s unusual to pay for tickets with cash,” MacDonald said. “We don’t have any empirical evidence to back this up.

“Intuitively, we think people don’t generally pay for tickets with cash, but we don’t know that.”

MacDonald said merely taking police at their word that they had reason to be suspicious would be the “thin edge to the wedge” that opens the door to illegitimate random searches.

Halifax lawyer Mark Covan, representing the Public Prosecution Service of Canada, argued it is impossible to define the criteria for reasonable suspicion because the variables are endless. He said each case must be judged on its own merits, and Chehil’s behaviour fit a well-known pattern for drug trafficking.

The case attracted the attention of governments and civil liberties groups.

Ontario’s attorney general intervened to argue that Canadians forfeit their right to privacy when they check their baggage for a flight.

“It becomes part and parcel of the regular travel process that you expect to have your luggage inspected,” said Amy Alyea, an Ontario prosecutor representing the attorney general.

The Canadian Civil Liberties Association countered that while flying does involve some curtailment of privacy rights for safety reasons, that in no way expands to cover random police searches.

The association argued that unless specific signs of wrongdoing are required, police profiling will unfairly target minorities.

Also at issue was the accuracy of Boris, the sniffer dog. The defence team argued Boris was unreliable due to past “false positive” sniffs.

The British Columbia Civil Liberties Association took it a step further, saying sniffer dogs should not be used in Canada without a warrant.

Because the use of sniffer dogs can curtail a person’s right to privacy, association lawyer Michael Feder said it is up to Parliament to debate and legislate when the dogs should be allowed to work, but so far the politicians have abdicated that responsibility.

The court will decide at an unspecified later date whether Chehil will face a new trial.

Original Article
Source: the chronicle herald
Author: PAUL McLEOD