Josh Dehaas: A long struggle for due process

This hard-won right to be secure against unreasonable searches and seizures is the reason so many of us felt queasy about the Emergency Economic Measures

By: Josh Dehaas

In a Boston courtroom in 1761, lawyer James Otis Jr. made one of the most consequential legal arguments of all time.

Otis was challenging the legality of “writs of assistance,” a form of general warrant giving unfettered discretion to customs agents to force their way into people’s homes to search for and seize smuggled goods, and to require the “assistance” of bystanders.

“It appears to me (may it please your honours) the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of the constitution, that ever was found in an English law-book,” Otis inveighed.

John Adams later described that day in court as “the first scene of the first Act of opposition to the Arbitrary claims of Great Britain. Then and there the Child Independence was born. Every Man of an immense crowded Audience appeared to me to go away, as I did, ready to take Arms against Writs of Assistants.”

This hard-won right to be secure against unreasonable searches and seizures, affirmed by Section 8 of the Canadian Charter of Rights and Freedoms, is the reason so many of us felt queasy about the Emergency Economic Measures ordered by the Liberal cabinet under the Emergencies Act in February to quell the trucker protests. Canadians might not know their constitutional history or even the text of the Charter, but they know in their bones that these orders were unconstitutional.

The emergency measures required financial institutions to search their records for customers suspected of “directly or indirectly” engaging in a “public assembly that may reasonably be expected to lead to a breach of the peace,” or “directly or indirectly” using their money to facilitate such protests, and then seize their accounts.

That’s a classic general warrant, a writ of assistance in fact, enlisting banks to help King Trudeau and Queen Freeland hunt down their political enemies without going before a judge to prove reasonable grounds that a specific offence had been committed by a specific person. Section 8 is designed to keep us secure against unreasonable searches and seizures by the executive, and the only way for individuals to maintain this security is by requiring specific warrants from an independent judiciary, barring exigent circumstances.

This profound assault on our section 8 right will hopefully be raised during Justice Paul Rouleau’s inquiry into the use of the Emergencies Act, despite Trudeau’s attempt to focus the inquiry on the truckers themselves. Even if section 8 doesn’t get examined during the inquiry, the Canadian Civil Liberties Association expects to raise it in Federal Court if they’re successful in convincing a judge to review the decision to declare the protests a national emergency.

To understand just how precious this protection truly is, it’s worthwhile to spend a moment examining its origins in Canadian constitutional law, which is inherited from the United Kingdom.  

Back in the 18th century, James Otis’ argument was based on a false rumour circulating in Massachusetts that general warrants did not exist in England, and that customs officers there were required to convince a judge that there were specific reasons to believe specific goods were in a specific place.

Otis lost his case, but helped found a new nation with a mighty constitution that guarantees in its Fourth Amendment that: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”

Though it was based on a false understanding of English law at the time, Englishmen themselves soon after turned on general warrants too.

In 1763, Secretary of State Lord Halifax issued a general warrant seeking the arrest of the authors, printers and publishers of The North Briton, which had insulted the king and called the executive “tools of corruption and despotism.” Halifax’s henchmen rounded up 49 people, including the author, opposition MP John Wilkes. Journalists covered every twist and turn. A pamphlet quoting Wilkes sold 500 copies in a half hour. An accused printer drew a crowd of 10,000 and 200 shillings in crowdfunding. In 16 trials, juries awarded £4,300, after just 66 minutes of deliberations. The court found Wilkes’s search unconstitutional and awarded £1,000.

The same year, another controversy erupted over general warrants authorizing tax collectors to enter homes to enforce a new tax on cider. “The poorest man may in his cottage bid defiance to all the forces of the crown,” railed William Pitt, the elder, in the House of Commons. “It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter! — all his force dares not cross the threshold of the ruined tenement!”

Within decades, the constitutional principle that the executive — even the king — cannot conduct searches and seizures without showing a justice specific evidence that a specific crime had been committed by a specific person had become solidified.

This was enshrined in the British common law from which Canada draws its own ancient legal precedents.

The first major post-Canadian Charter of Rights and Freedoms case to consider section 8 recognized this fact. In his 1984 decision in Hunter v. Southam, Chief Justice Brian Dickson struck down two provisions of a law that allowed members of the executive to order warrantless searches of the offices of the Edmonton Journal and anywhere else in Canada for evidence of “restrictive trade practices.” Dickson said the purpose underlying section 8 includes the “public’s interest in being left alone” and that searches become reasonable only where “credibility-based probability replaces suspicion.”

“It is not enough that a determination be made, after the fact, that the search should not have been conducted,” Dickson wrote. “Reasonable and probable grounds established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard.”

In other words, no general warrants.

Justice Gérard La Forest also saw the big picture in two 1990 cases, R v Duarte and R v Wong.

In Duarte, the court struck down a provision of the Criminal Code that had allowed police to bug apartments so long as an undercover police officer was a party to the conversations recorded. The provision had been upheld by Justice Peter Cory of the Ontario Court of Appeal on the argument that whatever one says to a friend is no longer “private,” so the government hasn’t violated our “reasonable expectations of privacy” if our friend turns out to be an informant. Informants have always been allowed to testify about what they heard, so what’s the harm in letting police make recordings without dealing with a pesky judge? And who but criminals would be concerned about being surreptitiously filmed anyway?

Justice La Forest recognized that we all ought to be concerned. It is only through requiring the state to seek judicial approval before they pry into our personal affairs that the public can maintain its right to be secure against unreasonable searches and seizures. Only a judge who is independent from the executive can prevent dragnets targeting the government’s enemies.

“[I]f the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance,” La Forest wrote. Parliament could, and did, pass a law allowing for electronic recordings, but police must prove to a justice why they need to bug a specific apartment of a specific person for a specific period.

In Wong, Justice La Forest smacked down Justice Cory’s ruling upholding the Toronto police’s decision to install surveillance cameras in a hotel room used for illegal gambling. Crown counsel had warned police that a judge was unlikely to issue a warrant for the search, so they didn’t bother to get one. Justice Cory said the search was reasonable because illegal gamblers didn’t have a “reasonable expectation of privacy” in a hotel room where they’d invited the public to gamble.

For Justice La Forest this missed the point. We can’t be secure against unreasonable searches if the government can justify getting our private information just because we shared it with a third party.

“In a view of the advanced state of surveillance technology, this would be to adopt a meaningless standard, for, in the final analysis, the technical resources which agents of the state have at their disposal ensure that we now run the risk of having our words recorded virtually every time we speak to another human being,” Justice La Forest explained.

“While there are societies in which persons have learned, to their cost, to expect that a microphone may be hidden in every wall, it is the hallmark of a society such as ours that its members hold to the belief that they are free to go about their daily business without running the risk that their words will be recorded at the sole discretion of agents of the state,” La Forest went on.

La Forest was saying that, if the state could spy on us without needing a warrant, we’d fast find ourselves in a police state, and section 8 could not fulfill its purpose of keeping the government out of our affairs. La Forest was worried about spying using video cameras, but the principle against general warrants is even more pressing in the Internet age. Without section 8, dissidents might not be able to trust their internet service providers, their bankers, or their crowd-funding platforms. We could retire to our ruined tenements, but the king could still get in.

The Emergency Economic Measures were not video recordings or searches of people’s houses, but they were warrantless searches just the same. Rather than going to a justice and swearing an oath about why a particular person’s bank account needed to be searched for particular transactions relating to a particular illegal blockade, King Trudeau and Queen Freeland opted for a general warrant, a writ of assistance, that compelled banks to engage in warrantless searches and seizures.

Just as section 8 precludes a microphone in every wall, it protects us from a financial system with the government peeking in every bank account. We ought to never let this happen again.

Josh Dehaas is a student at Osgoode Hall Law School. Find him on Twitter @JoshDehaas

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