DILUTING PRIVACY
In the case of R. v. Chehil[1] it was recently held that the police could obtain certain information a traveller provides when booking a flight. Mr. Chehil had purchased a one-way ticket at the Vancouver airport for an overnight flight to Halifax. The ticket was paid for in cash, and he was carrying one bag. In the view of police investigators, this was consistent with the profile of a drug courier. His bag was removed prior to reaching the baggage carousel. A police dog drug-sniffed the bag and reacted such that it was surmised that it likely contained narcotics. The bag was replaced on the baggage carousel and, when Mr. Chehil retrieved it, he was promptly arrested. The bag did indeed contain a substantial quantity of cocaine.
The information leading to the profiling was obtained from the Westjet passenger manifest at the Halifax airport, without a search warrant. In other words, the police were able to glean the booking/check-in information of all of the passengers to determine if the profile criteria had been met. We, of course, do not know how many other passengers had their bags removed and drug-sniffed by a police dog, with a negative result, such that the reliability of the profiling technique could be called into question. We do know however that the police reviewed every passenger’s booking information. In other words, without the need to obtain a search warrant, the police were able to determine the names of the passengers, how much and by what means they had paid for their ticket, when it was purchased, and how many bags they were carrying. Of course Westjet could have refused to provide the information, but as “good corporate citizens” they and other carriers are likely more than willing to comply.
In my view, this information is deeply personal. Why does the state have the right to know for instance where you may be travelling, whether you decided to purchase the ticket spontaneously the same day or previously, and how much you paid for your ticket? Why is the state entitled to all this information? Why isn’t a search warrant necessary to obtain it? Let’s bear in mind that this investigation didn’t concern flight security. While the information is clearly personal, the court seemed to feel that it was not “private” and therefore open to unconstrained inspection by the police. It is true that had the court determined that it had been illegally obtained, the inspection (“search”) of Mr Chehil’s bag would have been unconstitutional such that he would have likely been entitled to an acquittal. Is that too high a price to pay to keep the state from snooping into our personal lives unless they have appropriate grounds? I don’t think so. It is hoped that this case finds it’s way to the Supreme Court of Canada.
[1] 2009 NSCA 111