Search Law and Democracy-Reinforcement

Like publius, I've always been interested in process-based theories of constitutional law (as represented by our mutual hero John Hart Ely).

Many people complain that process theories ignore the substantive values protected by a constitution - liberty, property, privacy, substantive equality. Others point out that in judicial review as it is actually practiced, the courts eventually get around to a cost-benefit analysis of some kind, anyway, so why not just admit that up front?

Search law might seem like good terrain for the critics. The cases revolve around two substantive values - crime control and privacy. And the courts tend to make cost-benefit judgments: language about exigency, necessity and seriousness of the intrusion is everywhere. That sounds a lot like lawyer talk for deciding whether the costs to the state of a rule outweigh the benefits to the individual or vice versa.

But looking up the leading Canadian search cases for work, I was struck by how well they fit in a legal process framework.

The first principle is that the courts require specific legislative authorization of whatever search is at issue. Under s. 8, "not authorized by law" necessarily means "unreasonable." With minor exceptions, the law that authorizes the search has to be legislatively enacted. This has the "democracy forcing" quality of requiring legislative approval (which, in Canada, effectively just means requiring the executive to act relatively openly - in the US, it would have the further effect of requiring the collaboration of independent politicians).

In Hunter, the SCC insisted that laws authorizing searches should normally include a requirement for "prior judicial authorization" to show reasonable and probable grounds to believe that an offence had taken place. This proved to be unworkable. A health inspection of a restaurant is a search, as is a municipal building inspection - few outside the libertarian fringe seriously want to require that these occur only with a warrant. The tendency of the courts was to make a distinction between criminal law searches and "mere" regulatory ones. This was misguided. The purpose of section 8 (as opposed to one of the costs of it) is not to get criminals off, but to protect privacy. My privacy is just as affected if a by-law enforcement officer ransacks my house as if a cop does. If anything, more serious offences justify greater intrusions. In the event, the court was faced with the problem of random drunk-driving stops. These are clearly criminal, but the court could hardly strike them down.

The better distinction would have been between searches imposed on everyone equally (or tacitly consented to in the case of a regulated business), as opposed to discretionary searches. If the public as a whole is willing to have random spot checks of drivers, then there is no reason for the court to interfere. The same people suffering the burden on their privacy chose the restriction. On the other hand, searches imposed on teenage boys (and, most frequently, black and native boys) are imposed by a different group than those who have to put up with them. It doesn't necessarily mean they are unjustified, but it calls for greater scrutiny and procedural road blocks and so on.

If search law is all Ely-ian (or would make more sense if it were), then that should be counted for the team.